Dear Department of Veterans' Affairs,

I thought this best put separately as I understand these are different reports (as this one apparently only deals with caseload, staffing, claims intake and TTTP summary statistics).

The following is an extract of ANAO’s Performance Audit Report entitled “Efficiency of Veterans Service Delivery by the Department of Veterans’ Affairs” published 27 June 2018 and therefore should be quite current:

3.35 Governance and oversight of R&C is the responsibility of a national business manager located in Melbourne. An extensive suite of reports and analysis is prepared on a monthly, weekly and daily basis containing metrics about R&C operations. The reports focus on the caseload, staffing, claims intake and TTTP broken down by locations and individuals. The standard reports also include exception reporting of all cases with a TTTP of 240 days or longer, 365 days or longer and separate reporting of the ‘top 20’ oldest claims. Along with TTTP reporting, the standard suite of reports provide details of quality assurance activities and results.

It therefore is apparent that DVA has produced on a monthly basis a standard report that details the aforementioned summary statistics, along with a list of the top 20 oldest claims still outstanding, as a normal routine managerial report.

I therefore seek copy of each monthly report from July 2017 thru to and including June 2018 under FOI.

While summary statistics contain no personal information, it is possible the ‘Top 20’ list may refer to the individual names of veterans, so consent is given to redact the name of any private individual (as I’m only interested in the time they have been outstanding).

From what I understand, the monthly report doesn’t drill down into details, being a summary report, but if any private individuals’ personal information is contained within them, then this of course may be redacted with consent.

As the aforementioned ANAO report highlighted that despite the number of cases-on-hand / work-in progress files has fallen by 17.9 per cent (2,266) from the start of the 2015 to 2017 period to its end, but the DVA average TTTP (time taken to process) only fell between 3 per cent and 9 per cent across all R&C claim categories in the same period, inferring that DVA is considerably less efficient at processing liability claims than it used to be, it is hoped this information may shed some light on the causes of this loss of efficiency.

Yours faithfully,

Julie

Dear INFORMATION.LAW,

I don’t have enough information from what you have provided to assess whether an extension would be reasonable, or even whether the time frame sought is reasonable.

You have basically just inferred you haven’t done any work to date on this FOI, but now realising the due date is coming up, want to treat the FOI as if it was made next week, instead of nearly a month ago.

Whether this is actually true or not, I have no information to determine either way.

I do note that the Information Commissioner has previously determined that if an agency’s mismanagement or failure to adequately resource its FOI functions had caused a delay, the FOI applicant should not be penalised for it (because it’s not their fault).

While I would consider agreeing to a reasonable extension, I have no information before me from DVA to assess what is reasonable in the circumstances (which may be 30 days or something lesser or not at all).

I am also concerned that despite citing a higher FOI workload, it seems that many people are being told they will having ongoing delays to their FOI by DVA at the moment, so it is unclear what DVA is actually working on right now that is causing these delays (especially if everyone is getting these delay notices).

So, as I do not want to treat you unfairly by just making a decision on very limited information from you, can you please advise the following before Oct 3:
* What work to date has already taken place on this FOI?
* What timetable of steps can DVA outline for this FOI if the extension is granted (maybe I can save you some time by letting you know what’s not necessary)?
* Will DVA agree not to make any charges notices or not to refuse to release anything, if the extension is agreed (there is not much point giving extra time if you have no intent to provide access)?
* Can you provide some transparency about this higher workload? Is it due to more FOIs, or higher priority FOIs, or staff absences or some other factor (and was there a reason DVA did not foresee it)?

I look forward to your response, which will hopefully provide the missing detail necessary to make an informed and fair decision on your application.

Yours sincerely,

Julie

Dear INFORMATION.LAW,

So, to summarise your carbon copy response (which is the same response given to all the FOIs of mine you have delayed, despite them being on very different topics and even different in scope capture):

^ Despite, according to Prime Minister and Cabinet guidelines someone else posted here on Right to Know, agencies commit no more than 2 calendar days to the conducting searches phases (and then only up to a maximum of one hour of staff time), the DVA has only just started this step and has yet to complete it (I note the DVA did not state when it first conducted these searches, nor state when they would be completed, despite the DVA being aware there is a hard limit on the time the DVA will conduct such searches);

^ Despite that the DVA has not completed any steps, even though the 30 day s 15(5)(b) deadline has almost expired, the DVA has not and will not commit nor consider what time it will commit to completing all the FOI steps by (which is concerning given the DVA has hard limits as to how much time it will spend on any FOI step, and should be planning and managing FOIs, not asserting that they are treated as hoc by the DVA’s specialised FOI staff);

The DVA may cause further delay by issuing a very late practical refusal, or very late charges notice, or very late intent to refuse access decision, all which will extend this FOI by months (possibly years if it goes to IC Review.

It is concerning that, having failed to substantiate any reasonable grounds for the initial failure to handle this FOI in accordance with the statutory obligations, that the DVA has just sat on the FOI for the vast majority of the s 15(5)(b) statutory period, to create delay. That is inconsistent with the aims and objects of the Freedom of Information Act.

It is also concerning that the 30 day extension sought, was not based on any reasonable need assessment, but rather to just claim the maximum extension possible (again inconsistent with the aims and objects of the Act).

You have not provided me with any substantive evidence that would justify that they delays caused were due to factors outside your control, to support extension. There is a worrying lack of transparency here, especially when the DVA has sought extensions to all my FOIs, regardless of simplicity or narrowness of scope.

I do note however that there remains another 7 business days before the s 15(5)(b) statutory deadline expires and that according to the Prime Minister and Cabinet guidance, this is ample time to complete a number of steps (including assessment).

If the DVA can update me on the progress it has made by COB Tuesday 9 October 2018, and if there has been substantive progress made, I will consider an extension at that time.

It is still something of a concern however, that the DVA is processing FOIs in an ad hoc haphazard way (which is the most generous and positive interpretation you can put on in), instead of planning and managing them professionally and competently in line with the aims, objects and purposes of the FOI Act and the various directives and guidelines that apply.

Yours sincerely,

Julie

Mr Carl English (OAIC),

I note your template extension approval letter, granted despite not having giving me the opportunity to be heard before you made your decison.

I am concerned that despite no complexity or voluminous nature to this FOI, an extension has been granted instead because DVA had ‘a busy caseload’ which is not a s 15AB ground.

This appears to therefore be an abuse of s 15AB.

A scan of Right to Know FOIs made to DVA for which you have subsequently and always approved the granting of a s 15AB extension to, demonstrates such grants of an extension of time has not delivered a well-reasoned or better managed decision by DVA, but resulted in further delays or refusals or late notice charges.

Such a fact would have been a relevant consideration you should have taken into account before such a decision was made. Your anticipation therefore seems deeply flawed, and without reasonable basis, based on the evidence.

I note someone else here on Right to Know requested and received the s 15AB application the OAIC processed. I would like that to, to better understand what looks to be an improper decision.

Julie

Dear INFORMATION.LAW,

I consider the DVA applying for s 15AB extension, without giving notice to me that it had, rather rude and opaque.

I consider that the DVA’s failure to be honest and open and transparent about where this FOI is at, what steps have already taken place and when it will be decided (and even if further roadblocks will be thrown up by DVA), to be unethical and improper.

When people told me DVA had a terrible reputation for abusing the FOI Act, I felt they were just overstating things, as the Public Service Act requires every public servant to behave in an ethical and honest manner, but now I can see I was wrong and they were right.

I honestly don’t understand your agency’s hostility and lack of ethical conduct, and while I reflect that this perverse concerning culture at the DVA may be far broader than just this poor conduct with FOI, I have to wonder what sort of governance risks this culture creates for the public, because the stewardship at DVA is obviously not well.

Yours sincerely,

Julie

Carl English (OAIC)

If you could explain how 1 copy of the 12 pre-existing summary reports sought (each of only a few pages) is complex and/or voluminous, I would be grateful.

This is just for copies of summary monthly reports that DVA produces for its senior management, for one financial year only. As I understand it, each report is less than 5 pages, meaning a maximum of 60 pages to be reviewed, for documents created within the last financial year.

There is no evidence that any complexity or voluminous relates to the pre-existing documents in scope of this FOI.

Julie

Carl English (OAIC),

The DVA appears to be routinely asking, and always receiving, s 15AB extensions from the you at the OAIC, under equally questionable circumstances, so that claim is untenable.

I am not aware of the common law right to be heard before a decision impacting on their statutory entitlements is made by a delegate, as being waived under a certain time threshold - as I understand it, it is a universal right recognised widely in administrative law, with failure to abide seeing delegates stray into unreasonable behaviour and a breach of administrative justice principles. Just because it is common law (like Legal Professional Privilege) doesn’t mean it can be ignored at discretion.

I am also not aware that s 15AB extends to granting extensions for third party conferral, as the statutory right for agencies to extend the s 15(5)(b) deadline for third party consultation already exists under ss 26A, 26AA, 27 or 27A of the Freedom of Information Act.

Simply stating the word complex or voluminous does not satisfy the threshold of s 15AB, nor does it enable extensions to be granted for reasons other than those specified in s 15AB, yet clearly you have improperly granted this extension under s 15AB, despite it being non-compliant.

Furthermore, the FOI scope made very clear that the documents sought where the standard Rehabilitation and Compensation performance metrics reports, produced monthly internally by DVA for its own Senior Leadership Team (and has nothing to do with the ANAO, other than that ANAO made a brief comment in one report that this is a routine governance activity DVA engage in to monitor R&C performance - it was in no way and nothing to do with an ad hoc papers submission to the ANAO or unique request from the ANAO to the DVA for a unique report, as such papers would be exempt anyway).

I find it concerning that blantant misrepresentation about the scope of this FOI, what documents it covers, and what s 15AB allows have been made, and I seek a senior officer of the OAIC to review your inappropriate use of s 15AB, as it clearly does not apply to extensions of time for third party consultation, which should only occur under ss 26A, 26AA, 27 or 27A in this first instance.

I was of the understanding the OAIC were supposed to be regulating FOI in the federal public sector, not facilitating its abuse.

Julie

Carl English (OAIC),

I write further in regards to your statement in your response of 11 October 2018 which stated you were entitled to ignore natural justice principles (which are common law) because the improper extension you granted the DVA under s 15AB for a non-s 15AB ground was ‘not particularly long.

The OAIC’s Information Commissioner has published her Freedom of information regulatory action policy (Feb 2018) on the OAIC website ( https://www.oaic.gov.au/resources/about-... ). Pages 5-6 relevantly state:

Regulatory action principles

The Information Commissioner will be guided by the following principles when taking FOI regulatory action:

Independence — the Information Commissioner will act independently and take action that is impartial and objective.

Accountability — the Information Commissioner is accountable for its FOI regulatory action through a range of review and appeal rights, and will ensure stakeholders are aware of those rights.

Proportionality — the Information Commissioner’s FOI regulatory action will be proportionate to the situation or conduct concerned.

Consistency — the Information Commissioner will strive to act consistently in a manner that is guided by and reflects this policy.

Timeliness — the Information Commissioner will strive to conduct and finalise regulatory action as promptly as practicable.

Transparency — the Information Commissioner will be open about how FOI regulatory powers are used, including by publishing relevant guidance (including this policy and the FOI Guidelines), information about the regulatory action taken and decisions on Information Commissioner reviews.

When taking FOI regulatory action, the Information Commissioner will act consistently with general principles of good decision making, as explained in the Best Practice Guides published by the Administrative Review Council. ^^^In particular, the Information Commissioner will act fairly and in accordance with principles of natural justice (or procedural fairness).^^^ [no mention that there is a cut off or derogation based on the amount of time involved]

Yet again, the evidence is you Carl English have not adhered to the OAIC’s own directives, guidelines and policies, have been opaque and unaccountable, and have acted outside your delegated legislative powers.

This is to be regarded as a formal complaint about your decision and I want it to be dealt with by a senior OAIC officer, as a formal complaint about your conduct and your decision, to avoid all doubt.

Yours sincerely,

Julie

To Carl English,

On 10 October you wrote to me:

‘As a delegate of the Information Commissioner, I am authorised to make decisions on applications for extensions of time under s 15AB of the FOI Act. I have decided to grant the Department an extension of time under s 15AB(2) of the FOI Act to 25 October 2018.

By granting an extension of time it is anticipated that the Department will provide a well- reasoned and better managed decision.’

We are now three weeks past that extended deadline, and the Department of Veterans’ Affairs has still yet to give any update, let alone a decision notice.

It appears your anticipation that the extension you granted would enable the Department to provide a well-reasoned and better managed decision was grossly misplaced, and instead you have just delayed a deemed refusal decision instead, given nothing has been done by the DVA.

It also is worth highlighting that the OAIC has also ignored the DVA’s failure to provide any decision by expiry of the s 15AB deadline, and has not followed up with them either, again supporting the conclusion that Mr English was not motivated by the aims and objects of the FOI Act in granting this s 15AB extension without giving me the opportunity to be heard, but rather what was expedient for him.

I hope in future that the DVA’s non-compliance here will be reflected in future spurious and underhanded s 15AB application considerations.

Disappointing,

Julie

To INFORMATION.LAW,

Despite having received a s 15AB extension from the OAIC under highly inappropriate circumstances, to 25 October 2018, the Department has failed to provide a decision notice.

Despite three weeks having passed since then, no update nor belated decision notice has been provided.

Again, this is highly unprofessional behaviour by the Department and shows a contemptuous disregard for the FOI Act, especially since this comes against a rash of deemed decisions received due to the Department failing to respond by statutory deadlines.

Not even an apology for missing the multiple deadlines!

Shocked,

Julie

Dear Vivian,

What are the usual steps taken by the OAIC when, after the OAIC has granted an agency a s 15AB extension in which to provide ‘a well-reasoned and better managed decision’, the agency fails to provide a decision nor give any reason why it has failed to do so?

Can you please explain to me what the OAIC does when, having granted an agency a s 15AB extension (in this case, invalidly and without giving me the right to be heard), the agency fails to provide any decision and continues to ignore follow up for weeks?

Doesn’t the OAIC take any responsibility for the mess it has made of this FOI, having invalidly granted an s 15AB extension for an alleged need for third party consultation (of which no consultation has taken place), and now that the s 15AB expired some weeks go, the Department of Veterans’ Affairs has continued to ignore and has failed to respond to follow ups by me?

Or it is that the OAIC simply ignores this unethical conduct by the Department and just immediately stamps the next s 15AB extension made by the Department of Veterans’ Affairs, acting mock shocked when the same thing happens all over again?

Of the FOIs I have made to the Department of Veterans’ Affairs, I think it safe to say none had been treated as they are supposed to be treated under the FOI Act, with the Department engaging in very disappointing behaviour quite contrary to its aims and objective, and in bad faith almost all of the time.

This is despite these FOIs being predominately very simple in nature.

My first FOI to the Department received a very poor decision notice, that even the Department could not defend on Internal Review (thankfully - but I since note that the DVA aren’t even trying to issue decisions on Internal Reviews now).

My second FOI for the minutes of the Executive Board of DVA was again treatedly very poorly and it is difficult to see how all of the minutes (for such benign things like the attendees titles, agenda titles, start time, etc) could in any way be justified for total exemption and now, instead of dealing with the Internal Review request, the Department has just simply ignored it (now having gone deemed on 1 November and the DVA has refused to respond to follow up).

After being refused access to the Executive Board Minutes, I identified via the Department’s own published Corporate Plan (page 8 - https://www.dva.gov.au/sites/default/fil... ) the various Departmental senior subcommittees and related comittees (Tier One and Tier Two senior committees as the Department calls them, above the level of working and reference groups, with these Tier One and Two committees having Senior Executive Service members of the Department on them). I then sought the minutes of these committees in FOIs 25066 & 25068 & 25070 & 25071 & 25074 & 25075 only for the Department to refuse any access, by either denying any records existed of these very senior committees or claiming they were so secret that even partially releasing any document would cause the end of the world (even for something as basic as the titles of those who attended, the time the committee meeting started, and other benign information).

This is despite, for example, the DVA People Committee having been around since 2014 (even earlier if you count the performance and change committee it was part of previously) and the other committees existing in one form or another similarly since the start of the decade as well.

To date, I have had:
* One s 15AB granted DVA FOI extension, which even with extension, the Department did not respond and still continues to not respond;
* FIVE deemed decisions due to the refusal of the Department to adhere to statutory deadlines under the FOI Act;
* An number of poor quality ‘cut and paste’ duplicate access refusal decisions that are, frankly, untenable; and
* Unnecessary and unethical hostility from Departmental staff to the rights of access under FOI law, including in the making of last minute extensions of essentially false and unsupported claims, merely to delay access (as show by this FOI, FOI 24434, where DVA - despite receiving the invalid extension - let it expire without taking any action and still is ignoring its obligation to provide a decision notice)

The history of the Department’s handling of my FOI applications made to it, are - frankly - shameful:

*DVA FOI 24057*
> Made 17 August 2018
>> Access Refusal Decision 17 September 2018 https://www.righttoknow.org.au/request/4...
>>> Reversed on Internal Review to Partial Access https://www.righttoknow.org.au/request/4...

*DVA FOI 24297*
> Made 31 August 2018 (Due 1 October 2018 due to falling on a Sunday)
>> Deemed Refusal 1 October 2018
>> 2 October 2018 Access Refusal Decision substitution over all minutes (47C & 47E), including time and attendees and titles etc https://www.righttoknow.org.au/request/4...
>>> 2 October 2018 - Internal Review applied for and decision was due 1 November 2018
>>>> Department did not respond, deemed upholding of original decision, and the DVA have not responded to follow up messages

*DVA FOI 24432*
> Made 11 September 2018
>> Department sought s 15AA extension on 27 September 2018 for additional 30 days; despite repeated requests for justifying evidence, Department failed to provide any (just generic and vague unsubstantiated claims) - no grounds identified by Department to support extension - asked Department to update me by 9 October 2018 on stage of progress but Department failed to do so
>>> Due date was 11 October 2018, Department did not respond and FOI received a deemed refusal as a result
>>>> Three seperate follow ups have been ignored by Department

*DVA FOI 24434* (This FOI)
> Made 11 September 2018 (Due 11 October 2018)
>> Department sought identical s 15AA extension on 27 September 2018 for additional 30 days (same as FOI 24432 and FOI 24465); despite repeated requests for justifying evidence, Department failed to provide any (just generic and vague unsubstantiated claims identical to those made in FOI 24432 and FOI 24465) - no grounds identified by Department to support extension - asked Department to update me by 9 October 2018 on stage of progress but Department failed to do so
>>> 10 October 2018 - on second last day of s 15(5)(b) statutory deadline, the Department without notice applied to the OAIC for a s 15AB extension instead and received it from the OAIC within hours of the application having been made - s 15AB extension granted was not on basis of being complex or voluminous but to allegedly allow for a consultation by DVA with ANAO (despite the documents sought being routine reports from its own performance management system) - third party consultations are not provided for under s 15AB, as they come under ss 26AA, 27 or 27A of the FOI Act and therefore this decision by the OAIC was invalid and beyond the power of the delegate to issue as a s 15AB decision.
>>>> 25 October 2018 - s 15AB extension granted expired on this date and yet no decision notice was provided by the DVA and the Department has failed to respond to follow up. FOI is deemed refusal and no charges can be applied as a result to future decisions.

*DVA FOI 24465*
> Made 12 September 2018
>> Department sought identical s 15AA extension on 27 September 2018 for additional 30 days (same as FOI 24432 and FOI 24434); despite repeated requests for justifying evidence, Department failed to provide any (just generic and vague unsubstantiated claims identical to those made in FOI 24432 and FOI 24434) - no grounds identified by Department to support extension - asked Department to update me by 9 October 2018 on stage of progress but Department failed to do so
>>> 3 October 2018 - Department sought revised scope to only three document categories of its choosing, a request to provide further details was ignored by the Department
>>>> On decision due date (12 October 2018) the DVA apply for s 15AB extension instead, as extension was not granted before expiry of s 15(5)(b) deadline, no charges can now be levied, and decision lapsed into deemed refusal decision
>>>>> 18 October 2018 - after submissions, the OAIC declines to grant the Department a s 15AB extension
>>>>>> 26 October 2018 - Department provides a list of 75 documents (although some are actually parts of the same document) - down from the 100+ claimed in the s 15AB application to exist - identified and asks me to select 50 from that list
>>>>>>> 29 October 2018 - I identify the 25 documents DVA may chose not to consider
>>>>>>>> 13 November - FOI now over two months old and still without a decision notice from the Department, follow-ups are just ignored by the DVA.

*DVA FOI 25066*
> Made 13 October 2018 (Due date 12 November)
>> 12 November 2018 - Full access refusal decision (s 45, s 47C & s 47E) over all minutes, including time and attendees and titles etc (identical decision to FOI 25068) https://www.righttoknow.org.au/request/4...
>>> 15 November 2018 - Internal Review Applied for (due 17 Dec 2018)

*DVA FOI 25068*
> Made 13 October 2018 (Due date 12 November)
>> 12 November 2018 - Full access refusal decision (s 45, s 47C & s 47E) over all minutes, including time and attendees and titles etc (identical decision to FOI 25066) https://www.righttoknow.org.au/request/4...
>>> 15 November 2018 - Internal Review Applied for (due 17 Dec 2018)

*DVA FOI 25070*
> Made 13 October 2018
>> Refused Access (Doesn’t exist) 25 October 2018 (Despite committee being identified by DVA’s own published Corporate Plan) (identical response to FOI 25071 & 25074 & 25075) https://www.righttoknow.org.au/request/4...
>>> 25 October 2018 - Referred to OAIC for IC Review (still waiting for allocation from OAIC)

*DVA FOI 25071*
> Made 13 October 2018
>> Refused Access (Doesn’t exist) 26 October 2018 (Despite committee being identified by DVA’s own published Corporate Plan) (identical response to FOI 25070 & 25074 & 25075) https://www.righttoknow.org.au/request/4...
>>> Internal Review applied for 26 October 2028; awaiting decision (due 26 November)

*DVA FOI 25074*
> Made 13 October 2018
>> Refused Access (Doesn’t exist) 25 October 2018 (Despite committee being identified by DVA’s own published Corporate Plan) (identical response to FOI 25070 & 25071 & 25075) https://www.righttoknow.org.au/request/4...
>>> 25 October 2018 - Referred to OAIC for IC Review (still waiting for allocation from OAIC)

*DVA FOI 25075*
> Made 13 October 2018
>> Refused Access (Doesn’t exist) 25 October 2018 (Despite committee being identified by DVA’s own published Corporate Plan) (identical response to FOI 25070 & 25071 & 25074) https://www.righttoknow.org.au/request/4...
>>> 25 October 2018 - Referred to OAIC for IC Review (still waiting for allocation from OAIC)

*DVA FOI 25115*
> Made 11 October 2018 (Due 12 November)
>> Partial Release decision 12 November, consisting almost wholly of my own emails, with more than 75% of the rest of pages fully redacted (just blacked out pages) https://www.righttoknow.org.au/request/4... https://www.righttoknow.org.au/request/4...
>>> Internal Review applied for 15 November 2018 (Due 17 Dec)

*DVA FOI 25436*
> Made 7 November 2018; awaiting decision (due 7 December)

*DVA FOI (Unallocated)*
> Made 15 November 2018; awaiting acknowledgment

*AAR - LEX 25117*
> Made 15 October 2018
>> Received partial release of material on 13 November 2018

Only the AAR was reasonable in the Department’s response, which has to be assessed as being the remarkable outlier from the overwhelming majority of the Department of Veterans’ Affairs responses.

I am rather stunned - to be frank - by the OAIC’s lack of interest here in what appears systemic bad faith by the Department in its FOI responses (or lack of responses), given it’s mandated regulatory role.

Sincerely,

Julie

Dear Vivian,

I take it from your answer, which did not directly address the issue raised, that the OAIC takes no action and applies no penalty to agencies that fail to abide by deadlines set by the OAIC.

This no doubt is the cause of much of the disregard agencies have for such OAIC set deadlines. It seems regardless of what happens, the OAIC just hands out free passes to such badly behaving agencies.

Yes, given the OAIC has pushed all responsibility for these breaches by the Department of Veterans‘ Affairs back to me, I apply for Information Commissioners’ Review of this FOI (along with all the other multiple deemed refusals I’ve received from this Department).

Yours sincerely,

Julie