Correspondence regarding FOI requests made by Justin Warren
Justin Warren made this Freedom of Information request to Services Australia
This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.
Dear Services Australia,
Please treat this as a formal request for documents under the Freedom of Information Act 1982.
I request a copy of all emails sent or received by Services Australia—and as it was previously known the Department of Human Services—regarding Freedom of Information requests filed by myself, Justin Warren using the RightToKnow service.
This will include all email correspondence internally between staff members (or contractors) of the department, and emails sent to or received from external parties.
Include in the scope all attachments to emails.
Include in the scope all FOI requests made prior to 10 April 2022.
A list of requests is available here: https://www.righttoknow.org.au/user/just...
I request that documents be provided in electronic format.
Yours faithfully,
Justin Warren
Thank you for contacting the Freedom of Information (FOI) team in Services
Australia.
This email acknowledges your correspondence and provides some general
information in relation to FOI.
Timeframe For processing your request
Under the FOI Act you have a right, with limited exceptions, to access
documents the agency holds. A FOI request normally takes 30 days to
process.
Please note this period may be further extended if we need to consult
third parties or for other reasons. We will advise you if this happens.
Charges
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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
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notices to. We will send all notices and correspondence to the address you
have used to email us. Please advise us as soon as possible if you wish
correspondence to be sent to another address or if your address changes.
Administrative release of documents
The agency has administrative access arrangements in place for the release
of certain documents without the need for a formal FOI request. These
arrangements do not extend to information or material of third parties.
Exclusion of junior staff details
Services Australia is working towards ensuring all staff have a choice
about whether they provide their full name, personal logon identifiers and
direct contact details in response to FOI requests. Where such details are
included in documents they will be redacted. If you request staff details
as part of your FOI application, this may add to processing time and
applicable charges as it will be necessary to consider whether these
details are exempt under the Act.
Dear Mr Warren,
Please find attached correspondence in relation to your request made under
the Freedom of Information Act 1982 (Cth).
Kind regards,
Hannah
Information Access Branch
LEGAL SERVICES DIVISION
[1]cid:image002.jpg@01D6BC07.2D63B370
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Dear Hannah,
Thank you for your email.
From the information you have provided, it is difficult to know how to most effectively narrow my request to be more tractable, but I will make some suggestions.
I am seeking to understand what information and opinions the department has held about me in the course of handling my FOI requests over time. Constraining the scope to a single FOI request would not achieve this objective. Similarly, I seek to understand the potential change in opinion through time, which necessarily requires seeking documents related to more than one FOI request.
I have purposefully limited my request to email and attachments so as to avoid including all documents held by the department that may contain information or opinions about me.
I am prepared to exclude email attachments if that will sufficiently reduce the work effort of processing my request. It is difficult to tell, based on the information you have provided thus far, how much impact this change in scope would have, as there is no breakdown on how many documents or pages are contained in email attachments as distinct from the emails themselves.
I am also prepared to exclude from scope emails (and attachments) sent to the department from external parties, as these are likely to contain information and opinions held by external parties rather than by the department. I would still prefer to include in scope email and attachments sent *from* the department to external parties as they are more likely to contain information and opinions held by the department.
It would also be useful to have a breakdown of roughly how many documents relate to each FOI request. I may be able to exclude certain FOI requests that constitute substantial effort while still achieving my objective of gaining access to the information and opinions held about me by the department.
I am happy to continue the consultation process to arrive at a scope that is reasonably achievable, and I look forward to your prompt response. I am also happy to discuss this matter on the phone if you provide me with a way to contact you. It might be quicker and more cost effective to do that rather than continue to trade emails back and forth.
Yours sincerely,
Justin Warren
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Dear Mr Warren,
Thank you for your correspondence dated 28 April 2022.
I am providing the following further information to you, as this may
assist you in revising the scope of your request.
From your email of 28 April 2022, I understand that you are seeking
information to allow you to understand what information and opinions
Services Australia (through its staff) have held about you in the course
of handling your FOI requests over time. Specifically, you seek to
understand the changes in opinion about you over time.
However, as outlined in my letter to you dated 27 April 2022, the scope of
your request captures a significant volume of documents, and as such a
'practical refusal reason' exists. The current wording of your request
captures agency records relating to:
· Thirty three (33) FOI requests you have lodged using the
'RightToKnow' service, and
· Reviews by the Office of the Australian Information Commissioner
(OAIC) and the Administrative Appeals Tribunal (AAT) of decisions made on
those requests.
Based on the initial search and retrieval estimate, which has been
undertaken in relation to the current scope of your request, a very large
volume of documents is captured by your request. This means that the
agency is unable to provide you with a breakdown of how many documents
relate to each FOI request, because this would require a significant
amount of time and agency resources to locate, identify and then review
the documents in order to provide this information to you.
I suggest you may wish to revise your request to only seek access to
documents relating to:
· a specific FOI request (LEX matter) and decision
· correspondence relating to a specific topic or keyword to enable
targeted searches to be completed for the correspondence you are seeking
· correspondence between specific people, or
· a specific date range.
Alternatively, you may wish to:
· exclude particular documents that are not of interest, such as:
- attachments to emails
- emails from external parties
- documents you have already received (for example via FOI),
and/or
- documents about reviews undertaken by the OAIC or the AAT, or
· restrict your request to correspondence relating to one specific
FOI request, excluding documents relating to review by the OAIC or the AAT
and any documents which you have already received a copy of via FOI.
I can confirm that only removing attachments from your request and/or
excluding emails from external parties, as you have suggested in your
email, is unlikely to remove the practical refusal reason. I have formed
this view, based on the initial search and retrieval estimate which has
been undertaken in relation to the current scope of your request.
Please note that even if you do revise the scope, the practical refusal
reason may remain if the revised request is still too large to be
processed. You will need to take this into consideration when revising the
scope of your request.
If you would like to discuss revising the scope, I would be happy to
contact you via telephone. To arrange this please respond to this email
advising of a suitable contact number and two suitable dates/times (during
ordinary business hours).
I trust this information will be of assistance to you in considering
revising your request.
Kind regards,
Hannah
Information Access Branch
LEGAL SERVICES DIVISION
[1]cid:image002.jpg@01D6BC07.2D63B370
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subject to legal professional privilege or information that is otherwise
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Dear Hannah,
I am happy to revise my request to exclude:
- attachments
- correspondence sent from external parties
- documents I have already received (for example via FOI)
- correspondence to or from the AAT and/or OAIC relating to my FOI requests
I am a little surprised the department is unable to provide a rough estimate of how many emails are related for each FOI request, given that the department assigns a unique reference number to each request and this reference number appears in the subject of emails that I have received from the department about my FOI requests. It seems to me that these reference numbers would provide the keywords that would enable targeted searches to be completed as you have suggested.
Agencies are responsible for managing and storing records in a way that facilitates finding them for the purposes of an FOI request ([2017] AICmr 116 at [37]). Poor record keeping or an inefficient filing system would not of themselves provide grounds for a claim that identifying or locating documents would be a substantial and unreasonable diversion of resources (FOI Guidelines [3.101]).
To discuss the scope further, please select a time that suits you with my scheduling tool that knows my calendar and is able to provide a range of times I am available: https://go.oncehub.com/JustinWarren
Yours sincerely,
Justin Warren
Dear Mr Warren,
I note that we have not received a response to the below correspondence to
you dated 2 May 2022.
As per our earlier correspondence to you on 27 April 2022, your response
is expected by today, 11 May 2022.
Please advise if you require the consultation period to be extended.
Kind regards,
Hannah
Information Access Branch
LEGAL SERVICES DIVISION
[1]cid:image002.jpg@01D6BC07.2D63B370
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subject to legal professional privilege or information that is otherwise
sensitive or confidential. If you are not the intended recipient of this
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From: FOI.LEGAL.TEAM <[email address]>
Sent: Monday, 2 May 2022 5:01 PM
To: '[FOI #8731 email]'
<[FOI #8731 email]>
Cc: FOI.LEGAL.TEAM <[email address]>
Subject: LEX 67435 - WARREN, Justin - s24AB consultation correspondence
[SEC=OFFICIAL]
Dear Mr Warren,
Thank you for your correspondence dated 28 April 2022.
I am providing the following further information to you, as this may
assist you in revising the scope of your request.
From your email of 28 April 2022, I understand that you are seeking
information to allow you to understand what information and opinions
Services Australia (through its staff) have held about you in the course
of handling your FOI requests over time. Specifically, you seek to
understand the changes in opinion about you over time.
However, as outlined in my letter to you dated 27 April 2022, the scope of
your request captures a significant volume of documents, and as such a
'practical refusal reason' exists. The current wording of your request
captures agency records relating to:
· Thirty three (33) FOI requests you have lodged using the
'RightToKnow' service, and
· Reviews by the Office of the Australian Information Commissioner
(OAIC) and the Administrative Appeals Tribunal (AAT) of decisions made on
those requests.
Based on the initial search and retrieval estimate, which has been
undertaken in relation to the current scope of your request, a very large
volume of documents is captured by your request. This means that the
agency is unable to provide you with a breakdown of how many documents
relate to each FOI request, because this would require a significant
amount of time and agency resources to locate, identify and then review
the documents in order to provide this information to you.
I suggest you may wish to revise your request to only seek access to
documents relating to:
· a specific FOI request (LEX matter) and decision
· correspondence relating to a specific topic or keyword to enable
targeted searches to be completed for the correspondence you are seeking
· correspondence between specific people, or
· a specific date range.
Alternatively, you may wish to:
· exclude particular documents that are not of interest, such as:
- attachments to emails
- emails from external parties
- documents you have already received (for example via FOI),
and/or
- documents about reviews undertaken by the OAIC or the AAT, or
· restrict your request to correspondence relating to one specific
FOI request, excluding documents relating to review by the OAIC or the AAT
and any documents which you have already received a copy of via FOI.
I can confirm that only removing attachments from your request and/or
excluding emails from external parties, as you have suggested in your
email, is unlikely to remove the practical refusal reason. I have formed
this view, based on the initial search and retrieval estimate which has
been undertaken in relation to the current scope of your request.
Please note that even if you do revise the scope, the practical refusal
reason may remain if the revised request is still too large to be
processed. You will need to take this into consideration when revising the
scope of your request.
If you would like to discuss revising the scope, I would be happy to
contact you via telephone. To arrange this please respond to this email
advising of a suitable contact number and two suitable dates/times (during
ordinary business hours).
I trust this information will be of assistance to you in considering
revising your request.
Kind regards,
Hannah
Information Access Branch
LEGAL SERVICES DIVISION
[2]cid:image002.jpg@01D6BC07.2D63B370
Please note: This email and any attachments may contain information
subject to legal professional privilege or information that is otherwise
sensitive or confidential. If you are not the intended recipient of this
email, you are prohibited from using or disseminating this communication.
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Dear Hannah,
I responded to your correspondence of 2 May 2022 on 3 May 2022 as archived here: https://www.righttoknow.org.au/request/c...
The RightToKnow website lists the message as Delivered, so I am unclear on why you have not received it.
Nevertheless, I shall restate my previous correspondence. Please confirm that you have received it successfully.
I am happy to revise my request to exclude:
- attachments
- correspondence sent from external parties
- documents I have already received (for example via FOI)
- correspondence to or from the AAT and/or OAIC relating to my FOI requests
I am a little surprised the department is unable to provide a rough estimate of how many emails are related for each FOI request, given that the department assigns a unique reference number to each request and this reference number appears in the subject of emails that I have received from the department about my FOI requests. It seems to me that these reference numbers would provide the keywords that would enable targeted searches to be completed as you have suggested.
Agencies are responsible for managing and storing records in a way that facilitates finding them for the purposes of an FOI request ([2017] AICmr 116 at [37]). Poor record keeping or an inefficient filing system would not of themselves provide grounds for a claim that identifying or locating documents would be a substantial and unreasonable diversion of resources (FOI Guidelines [3.101]).
To discuss the scope further, please select a time that suits you with my scheduling tool that knows my calendar and is able to provide a range of times I am available: https://go.oncehub.com/JustinWarren
In light of the communication issues, yes, an extension to the consultation period seems advisable.
Yours sincerely,
Justin Warren
Dear Mr Warren,
I can confirm I have received your email today dated 11 May 2022.
Unfortunately, we have no record of the correspondence you have mentioned dated 3 May 2022.
I will review the information you have provided in your correspondence below and endeavour to respond to you by Friday 13 May 2022.
In the interim, I will extend the consultation period to 18 May 2022.
Kind regards,
Hannah
Information Access Branch
LEGAL SERVICES DIVISION
Please note: This email and any attachments may contain information subject to legal professional privilege or information that is otherwise sensitive or confidential. If you are not the intended recipient of this email, you are prohibited from using or disseminating this communication. If you have received this communication in error please notify the sender immediately and permanently delete this email.
Dear Hannah,
I contacted the RightToKnow admins, who pointed out that the website includes an evidence trail of email delivery. The green tick and Delivered status indicates that the RTK website delivered my email of 2 May 2022 to a Services Australia mailserver.
The following technical information may assist your IT staff to diagnose the issue with your mail infrastructure.
May 3 09:08:15 ip-172-31-43-31 postfix/pickup[26847]: 4F8A43E991: uid=1001 from=<foi+request-8731-[REDACTED]@righttoknow.org.au>
May 3 09:08:15 ip-172-31-43-31 postfix/cleanup[2443]: 4F8A43E991: message-id=<[email address]>
May 3 09:08:15 ip-172-31-43-31 postfix/qmgr[1552]: 4F8A43E991: from=<foi+request-8731-[REDACTED]@righttoknow.org.au>, size=8241, nrcpt=1 (queue active)
May 3 09:08:15 ip-172-31-43-31 postfix/smtp[2445]: 4F8A43E991: to=<[email address]>, relay=mailin8.servicesaustralia.gov.au[161.146.192.4]:25, delay=0.68, delays=0.02/0.01/0.19/0.46, dsn=2.0.0, status=sent (250 ok: Message 13860882 accepted)
May 3 09:08:16 ip-172-31-43-31 postfix/qmgr[1552]: 4F8A43E991: removed
For the record, this is evidence that my correspondence of 3 May 2022 was received by Services Australia at 9:08am on 3 May 2022.
Yours sincerely,
Justin Warren
Dear Mr Warren,
The agency utilises HPE TRIM electronic files and shared electronic folders as repositories for documentation relating to freedom of information requests. This includes emails which are required to be transferred from Outlook into TRIM for storing. As such, emails relevant to your FOI requests may be stored across multiple locations (outlook, HPE TRIM and shared electronic folders) in accordance with record keeping requirements.
The process of searching for and confirming how many emails relate to each individual FOI request therefore involves checking records saved across each of these repositories manually, by opening, reading and reviewing the content of each document to confirm whether it falls within scope of the request, and cross checking results to prevent duplication.
As such, the agency is unable to provide you with a breakdown of how many emails relate to each FOI request, because the work involved in determining this would, in itself, require a significant amount of time and agency resources.
I consider that excluding attachments, correspondence from external third parties, documents you have already received and correspondence to or from the AAT and/or OAIC relating to your FOI requests is unlikely to remove the practical refusal reason. I have formed this view based on the initial search and retrieval estimate which has been undertaken in relation to the current scope of your request.
In light of this, I suggest you may wish to revise your request further to only seek access to documents relating to:
· a specific FOI request (LEX matter) and decision
· a specific and limited date range.
Please note that even if you do revise the scope further, the practical refusal reason may remain if the revised request is still too large to be processed. You will need to take this into consideration when revising the scope of your request.
As the request consultation period is due to end on Wednesday 18 May 2022, we look forward to receiving advice by this date as to whether you wish to further revise the scope of your request, withdraw the request or do not wish to revise your request.
Kind regards,
Hannah
Information Access Branch
LEGAL SERVICES DIVISION
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Dear Hannah,
I am trying to adjust the scope of my request to avoid a practical refusal, but the lack of information being provided by the department is making this difficult. I direct the department to section 24AB(4)(b) of the FOI Act:
(4) For the purposes of subsection (3), reasonable steps includes the following:
(a) giving the applicant a reasonable opportunity to consult with the contact person;
(b) providing the applicant with any information that would assist the applicant to revise the request.
I am being forced to guess at a scope that may fit within what the department considers practical without guidance as to what the department's definition of 'practical' is, nor whether a particular change in scope will actually be effective in avoiding a practical refusal. I have asked for specific information that would assist me, yet the department appears unwilling to provide it. This does not appear to me to constitute 'reasonable steps'.
This is not the first time I have had this experience with the department (e.g. [2019] AICmr 22).
I note that you have not, as yet, taken up the opportunity to book a phone call with me at a mutually convenient time to discuss the scope and how it can be adjusted to avoid a practical refusal. The method I have proposed (my booking tool here: https://go.oncehub.com/JustinWarren) would not require you to provide a contact phone number, something that the department has been at pains to avoid for many years. The department's steadfast refusal to have a simple discussion, combined with its insistence on vagueness in written communications, is providing a barrier to effective consultation. I am working hard to engage with the department in good faith; the department does not appear to be extending me the same courtesy.
As I have previously explained, I am looking to understand a pattern over time. You have provided no guidance as to how limited a date range would need to be in order to avoid a practical refusal reason. I acknowledge that some FOI requests may involve a greater number of documents than others. If you could provide me with some sort of breakdown of number of documents by category (such as date range, FOI request, or any other categorisation that your filing system uses), even if merely indicative (such as order of magnitude), that would assist me to find a range that is useful to me while avoiding undue difficulty for the department. Your system has been able to determine that you hold over 3,600 documents and over 11,000 pages within the original scope, so we know that you are able to at least estimate the number of pages per document within the scope without opening, reading and reviewing the content of each document. I find it difficult to believe that it is not possible to do this with subsets of the current scope.
Once again I draw your attention to paragraph [3.115] of the FOI Guidelines which states (in part): "Poor record keeping or an inefficient filing system would not of themselves provide grounds for a claim that processing the request would be a substantial and unreasonable diversion of resources."
I remain willing to reduce the scope to something tractable, but I require additional guidance from the department as to how this can be achieved. I am willing to continue the consultation process to achieve this.
Yours sincerely,
Justin Warren
Dear Mr Warren,
Please be advised the estimate provided to you, advising that the agency
holds more than 3,600 documents, was not determined by Services
Australia’s (the agency) systems. In order to provide this estimate, an
officer of the agency undertook a manual review of documents held by the
agency across multiple record repositories. Due to the volume of documents
captured by your request, the officer assessed a 10% sample of internal
agency reference numbers relevant to your request and established the
estimated figure by extrapolating the sample results over the entire
request.
As such, and as previously stated, the agency is unable to provide you
with a breakdown of how many emails relate to each FOI request, because
the work involved in determining this would, in itself, require a
significant amount of time and agency resources to manually compile.
I understand from your correspondence that the reason for your request is
to understand a pattern over time. However, it is not for the agency to
undertake such a subjective analysis of documents which may assist your
purpose, rather to provide documents in response to a defined scope.
In order to provide a scope that sufficiently identifies the specific
documents sought and removes the practical refusal reason, as previously
suggested, you may wish to revise your scope to be for:
In relation to (LEX XXXXX), and between the date of the lodgement of the
original request and the (e.g. original decision/internal review
decision):
- a copy of all emails sent or received by Services Australia (or
Department of Human Services) [Excluding attachments, correspondence from
external third parties, documents you have already received and
correspondence to or from the AAT and/or OAIC].
Based on the sample of documents, reducing your request to be in relation
to any single FOI request is likely to remove the practical refusal
reason.
As noted above the reason for your request is to understand a pattern over
time, in order to address this reason in the context of providing
information to assist you to revise the request, you may wish to consider
lodging one FOI matter now and after this is completed, proceed to lodge a
subsequent request so as not to overwhelm the resources of the agency.
Lodging a new request at the completion of a previous request would
achieve an appropriate balance between you exercising your rights to
access information under the Freedom of Information Act 1982, and not
imposing an unreasonable diversion of resources upon the agency. If you
were to lodge multiple requests at one time, this may result in a
practical refusal reason existing.
I thank you for your invitation to book a phone call, I have booked a time
to discuss this matter with you.
I have extended the consultation period to 25 May 2022 to allow you time
to consider your response.
Kind regards,
Hannah
Information Access Branch
LEGAL SERVICES DIVISION
[1]cid:image002.jpg@01D6BC07.2D63B370
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subject to legal professional privilege or information that is otherwise
sensitive or confidential. If you are not the intended recipient of this
email, you are prohibited from using or disseminating this communication.
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Justin Warren left an annotation ()
Call booked for 9:30am on Tue 24 May 2022 to discuss the scope and attempt to find a resolution we can both live with.
Dear Mr Warren,
Thankyou for meeting with me today to discuss revising your FOI request
(LEX 67435).
In summary, we discussed:
· The manual work involved in establishing an estimate of how many
emails relate to each FOI request. You advised you feel that the agency’s
filing system is inefficient and that you may lodge a complaint to the
Office of the Australian Information Commissioner.
· My recent correspondence to you dated 18 May 2022, in which I
suggested lodging requests for one LEX reference number at a time.
· I suggested whether you may wish to lodge a request relating to 2
or 3 FOI requests at a time and this would allow the agency to either move
forward with the request, or the request would be limited enough to
provide you with a breakdown relating to the 3 specified matters.
· You suggested lodging a request that captures one FOI matter per
year over 5 years, I advised I felt that would be reasonable to move
forward with, and that if the request is too voluminous to process, the
narrowed scope will allow the agency to be able to provide a breakdown of
how many documents relate to each matter so that you can make an informed
decision on how to revise.
· I advised you that I would send you a summary of our conversation
and that I would extend the consultation period to 27 May 2022. You
advised me that you would also send me a summary of what we discussed.
As discussed I have extended the consultation period until Friday 27 May
2022, I look forward to receiving your advice as to how you would like to
proceed, by this date.
Kind regards,
Hannah
Information Access Branch
LEGAL SERVICES DIVISION
[1]cid:image002.jpg@01D6BC07.2D63B370
Please note: This email and any attachments may contain information
subject to legal professional privilege or information that is otherwise
sensitive or confidential. If you are not the intended recipient of this
email, you are prohibited from using or disseminating this communication.
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From: FOI.LEGAL.TEAM <[email address]>
Sent: Wednesday, 18 May 2022 4:01 PM
To: Justin Warren <[FOI #8731 email]>
Cc: FOI.LEGAL.TEAM <[email address]>
Subject: RE: LEX 67435 - WARREN, Justin - s24AB consultation
correspondence [SEC=OFFICIAL]
Dear Mr Warren,
Please be advised the estimate provided to you, advising that the agency
holds more than 3,600 documents, was not determined by Services
Australia’s (the agency) systems. In order to provide this estimate, an
officer of the agency undertook a manual review of documents held by the
agency across multiple record repositories. Due to the volume of documents
captured by your request, the officer assessed a 10% sample of internal
agency reference numbers relevant to your request and established the
estimated figure by extrapolating the sample results over the entire
request.
As such, and as previously stated, the agency is unable to provide you
with a breakdown of how many emails relate to each FOI request, because
the work involved in determining this would, in itself, require a
significant amount of time and agency resources to manually compile.
I understand from your correspondence that the reason for your request is
to understand a pattern over time. However, it is not for the agency to
undertake such a subjective analysis of documents which may assist your
purpose, rather to provide documents in response to a defined scope.
In order to provide a scope that sufficiently identifies the specific
documents sought and removes the practical refusal reason, as previously
suggested, you may wish to revise your scope to be for:
In relation to (LEX XXXXX), and between the date of the lodgement of the
original request and the (e.g. original decision/internal review
decision):
- a copy of all emails sent or received by Services Australia (or
Department of Human Services) [Excluding attachments, correspondence from
external third parties, documents you have already received and
correspondence to or from the AAT and/or OAIC].
Based on the sample of documents, reducing your request to be in relation
to any single FOI request is likely to remove the practical refusal
reason.
As noted above the reason for your request is to understand a pattern over
time, in order to address this reason in the context of providing
information to assist you to revise the request, you may wish to consider
lodging one FOI matter now and after this is completed, proceed to lodge a
subsequent request so as not to overwhelm the resources of the agency.
Lodging a new request at the completion of a previous request would
achieve an appropriate balance between you exercising your rights to
access information under the Freedom of Information Act 1982, and not
imposing an unreasonable diversion of resources upon the agency. If you
were to lodge multiple requests at one time, this may result in a
practical refusal reason existing.
I thank you for your invitation to book a phone call, I have booked a time
to discuss this matter with you.
I have extended the consultation period to 25 May 2022 to allow you time
to consider your response.
Kind regards,
Hannah
Information Access Branch
LEGAL SERVICES DIVISION
[2]cid:image002.jpg@01D6BC07.2D63B370
Please note: This email and any attachments may contain information
subject to legal professional privilege or information that is otherwise
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Dear Hannah,
Thank you for your time yesterday. It was a productive discussion, and helped us to more promptly and efficiently move towards a tractable scope. I hope that this indicates a change in policy within the department and that this level of productive consultation is now the norm. It is a welcome change from the belligerent obstructionism of the past.
I concur with your characterisation of the discussion. As you alluded to, the main impediment to providing me with information that would assist me to revise my request is the inefficient filing system the department uses. This is not within your individual control, and is a systemic issue related to how the department resources its FOI obligations. I will take this matter up with the OAIC.
As discussed, I will select an individual FOI request from each of the years within the scope to serve as a representative sample over time. I will attempt to avoid selecting FOI requests that will result in a practical refusal reason remaining, but, as we discussed, it is not possible for me to guarantee that I will guess correctly at how the department organises its documents internally. If my guess happens to select an FOI request that ends up being too voluminous to remove the practical refusal reason, you will inform me that this is the case and I will guess again. I will make my first guess by 27 May 2022.
While I am confident that this will rapidly remove the practical refusal reason, as there are not that many possible guesses I can make, I wish to state for the record my displeasure that this process is necessary. I believe it is in direct opposition to Objects of the FOI Act, specifically section 3(4).
I once again acknowledge that you, as an individual FOI officer, are unable to effect a systemic change and thank you for your attempts to assist me in navigating the Kafkaesque FOI system the department has constructed around you.
Yours sincerely,
Justin Warren
Dear Hannah,
As per our earlier agreement, I would like to narrow the scope to documents relating to the following FOI requests (with the previously agreed exclusions of attachments, etc.):
- 2017, https://www.righttoknow.org.au/request/c... (Your reference: LEX 27960)
- 2018, https://www.righttoknow.org.au/request/d... (Your reference: LEX 34896)
- 2019, https://www.righttoknow.org.au/request/c... (Your reference: LEX 46187)
- 2020, https://www.righttoknow.org.au/request/c... (Your reference: LEX 55424)
This is four FOI requests, rather than the estimated five, as there are no relevant FOI requests for 2021.
Let me know if this removes the practical refusal problem, or if I should guess again.
Yours sincerely,
Justin Warren
Dear Mr Warren,
Thankyou for your email.
Based on our previous correspondence and our conversation on 24 May 2022, I have understood your revised request to be for:
Emails relating to the following FOI requests (excluding attachments, correspondence from external third parties, documents you have already received and correspondence to or from the AAT and/or OAIC relating to your FOI requests):
- 2017, https://www.righttoknow.org.au/request/c... (Your reference: LEX 27960)
- 2018, https://www.righttoknow.org.au/request/d... (Your reference: LEX 34896)
- 2019, https://www.righttoknow.org.au/request/c... (Your reference: LEX 46187)
- 2020, https://www.righttoknow.org.au/request/c... (Your reference: LEX 55424)
Please reply to this email to confirm if my understanding of your revised request is correct.
Once the scope is confirmed, we will undertake initial searches and advise you if a practical refusal reason still exists.
Kind regards,
Hannah
Information Access Branch
LEGAL SERVICES DIVISION
Services Australia acknowledges the Traditional Owners of the land now called Australia. We pay our respect to all Elders, past, present and emerging of all Aboriginal and Torres Strait Islander nations.
Please note: This email and any attachments may contain information subject to legal professional privilege or information that is otherwise sensitive or confidential. If you are not the intended recipient of this email, you are prohibited from using or disseminating this communication. If you have received this communication in error please notify the sender immediately and permanently delete this email.
Dear Mr Warren,
Please be advised that the revised scope you provided on Friday 27 May
2022 has removed the practical refusal reason in relation to the
processing of your request.
Your original request was received by Services Australia (the agency) on
11 April 2022. On 27 April 2022, the agency consulted with you as your
request involved too much work for the agency. You revised your request on
27 May 2022 and the 30 day statutory period for processing your request
recommenced from the day after that date. A decision is currently due from
us by 11 June 2022, as this is a Saturday, the agency is due to notify the
decision on the next business day, Monday 13 June 2022.
The agency has begun consulting with the relevant business area to
identify and retrieve documents in relation to your request.
Unfortunately, the processing of your request has been delayed whilst we
confirmed a revised scope with you. This means the agency will not be in a
position to provide you with a decision by the current due date of 13 June
2022. Therefore, I respectfully ask for an extension of 14 days under
section 15AA of the FOI Act.
The effect of this extension of time would mean that a decision would be
due by 25 June 2022, as this is a Saturday, the agency would notify the
decision on the next business day, Monday 27 June 2022.
I would be grateful if you can respond via email by Monday 6 June 2022 to
advise whether you agree to the extension of time.
Kind regards,
Hannah
Information Access Branch
LEGAL SERVICES DIVISION
Services Australia acknowledges the Traditional Owners of the land now
called Australia. We pay our respect to all Elders, past, present and
emerging of all Aboriginal and Torres Strait Islander nations.
Please note: This email and any attachments may contain information
subject to legal professional privilege or information that is otherwise
sensitive or confidential. If you are not the intended recipient of this
email, you are prohibited from using or disseminating this communication.
If you have received this communication in error please notify the sender
immediately and permanently delete this email.
Dear Hannah,
I agree to the extension of time.
I look forward to receiving the documents by Monday 27 June 2022.
Yours sincerely,
Justin Warren
Dear Mr Warren,
In regards to your Freedom of Information (FOI) request with reference LEX
67435, the agency is actively engaging with relevant business areas and
through initial search results has become aware of an additional business
area which hold documents relevant to your FOI request. The additional
business area has now commenced searches for documents.
Unfortunately, as this business area was not originally identified as
relevant to your request, the agency will not be in a position to provide
you with a decision by the current due date of 27 June 2022. Therefore, I
respectfully seek your agreement to a further extension of 16 days under
section 15AA of the FOI Act.
The effect of this extension of time would mean that a decision would be
due by Monday 11 July 2022.
I would be grateful if you can respond via email by Wednesday 22 June 2022
to advise whether you agree to the extension of time.
Kind regards,
Hannah
Information Access Branch
LEGAL SERVICES DIVISION
Services Australia acknowledges the Traditional Owners of the land now
called Australia. We pay our respect to all Elders, past, present and
emerging of all Aboriginal and Torres Strait Islander nations.
Please note: This email and any attachments may contain information
subject to legal professional privilege or information that is otherwise
sensitive or confidential. If you are not the intended recipient of this
email, you are prohibited from using or disseminating this communication.
If you have received this communication in error please notify the sender
immediately and permanently delete this email.
Dear Hannah,
It is disappointing that the department's lack of a high quality record system has created this situation.
I reluctantly agree to the extension.
However, I note for the record that the delay is due to the department's poor and inefficient record keeping. I will take a dim view of any charges related to search and retrieval costs, or attempts to claim that processing my request is an unreasonable diversion of resources. I also note that this inefficiency is directly contributing to the department's inability to facilitate public access to information promptly and at the lowest reasonable cost.
Yours sincerely,
Justin Warren
Dear Mr Warren,
Please find attached correspondence from Services Australia dated in
relation to your request for documents under the Freedom of Information
Act 1982.
Kind regards,
Hannah
Information Access Branch
LEGAL SERVICES DIVISION
[1]cid:image002.jpg@01D6BC07.2D63B370
Services Australia acknowledges the Traditional Owners of the land now
called Australia. We pay our respect to all Elders, past, present and
emerging of all Aboriginal and Torres Strait Islander nations.
Please note: This email and any attachments may contain information
subject to legal professional privilege or information that is otherwise
sensitive or confidential. If you are not the intended recipient of this
email, you are prohibited from using or disseminating this communication.
If you have received this communication in error please notify the sender
immediately and permanently delete this email.
References
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Dear Hannah,
I draw your attention to Part 4 of the FOI Guidelines which states, at [4.24] (in part):
An agency or minister cannot impose a charge:
• for giving access to an individual’s own personal information (s 7(1) of the Charges Regulations)
Section 7(1) of the Charges Regulation states:
There is no charge in respect of a request for, or for the provision of, access to a document that contains personal information of the applicant.
While the definition of personal information can be quite broad, the OAIC provides guidance at https://www.oaic.gov.au/privacy/guidance.... Broadly, personal information is "information or an opinion about an identified individual, or an individual who is reasonably identifiable".
Section 7(1) of the Charges Regulation does not specify any threshold quantity of personal information of the applicant that a document must contain before it becomes “a document that contains personal information of the applicant”. Therefore we must conclude that any document that contains any of my personal information is “a document that contains personal information of the applicant”.
Accordingly I urge the department to ensure that the charges exclude any and all documents that contain my personal information. There is no evidence before me that the department has done so, and thus I contend that the department has wrongly assessed the charge and that it should be reduced or not imposed.
Rather than expending effort determining which of the documents contain my personal information, and excluding them from the charges calculation at this late stage, the department may decide instead that it would be faster and cheaper to simply not impose the charges. This may facilitate access to information promptly and at the lowest reasonable cost, as per s 3(4) of the FOI Act.
Yours sincerely,
Justin Warren
Dear Mr Warren,
Thankyou for your correspondence dated 29 June 2022, requesting
reconsideration of the preliminary assessment of charges for your FOI
request LEX 67435.
I will consider your submissions and provide you with a reconsidered
charge decision by 29 July 2022.
Kind regards,
Hannah
Information Access Branch
LEGAL SERVICES DIVISION
[1]cid:image002.jpg@01D6BC07.2D63B370
Services Australia acknowledges the Traditional Owners of the land now
called Australia. We pay our respect to all Elders, past, present and
emerging of all Aboriginal and Torres Strait Islander nations.
Please note: This email and any attachments may contain information
subject to legal professional privilege or information that is otherwise
sensitive or confidential. If you are not the intended recipient of this
email, you are prohibited from using or disseminating this communication.
If you have received this communication in error please notify the sender
immediately and permanently delete this email.
Dear Mr Warren,
Please find attached correspondence from Services Australia dated 29 July
2022 in relation to your request with reference LEX 67435 for documents
under the Freedom of Information Act 1982.
Kind regards,
Hannah
Information Access Branch
LEGAL SERVICES DIVISION
[1]cid:image002.jpg@01D6BC07.2D63B370
Services Australia acknowledges the Traditional Owners of the land now
called Australia. We pay our respect to all Elders, past, present and
emerging of all Aboriginal and Torres Strait Islander nations.
Please note: This email and any attachments may contain information
subject to legal professional privilege or information that is otherwise
sensitive or confidential. If you are not the intended recipient of this
email, you are prohibited from using or disseminating this communication.
If you have received this communication in error please notify the sender
immediately and permanently delete this email.
References
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Justin Warren left an annotation ()
Note how the revised charges decision was made exactly 30 days after the initial decision was made and how this has functioned to delay providing the documents requested.
Dear Hannah,
I am glad the department has belatedly reconsidered its initially incorrect decision.
I look forward to immediately receiving the documents I requested. It has been over 30 days since I explained why a charge should not be imposed and it would be disappointing if the department has made no progress on my request during that time.
The department has already asked for, and been granted, multiple time extensions. I trust no more will be needed.
Yours sincerely,
Justin Warren
Dear Mr Warren,
Please find attached the decision letter and documents relating to your
request for access to documents held by Services Australia, under the
Freedom of Information Act 1982.
If you have any questions regarding this matter or are unable to open the
attachments please contact me by replying to this email.
Kind regards
Hannah
Information Access Branch
LEGAL SERVICES DIVISION
[1]cid:image002.jpg@01D6BC07.2D63B370
Services Australia acknowledges the Traditional Owners of the land now
called Australia. We pay our respect to all Elders, past, present and
emerging of all Aboriginal and Torres Strait Islander nations.
Please note: This email and any attachments may contain information
subject to legal professional privilege or information that is otherwise
sensitive or confidential. If you are not the intended recipient of this
email, you are prohibited from using or disseminating this communication.
If you have received this communication in error please notify the sender
immediately and permanently delete this email.
References
Visible links
Dear Services Australia,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Services Australia's handling of my FOI request 'Correspondence regarding FOI requests made by Justin Warren'.
s 22 claim over staff details
A great many identifying details have been withheld without an exemption claim being made. At no time have I indicated that I consider such details to be irrelevant. I have consistently maintained in other dealings with the agency that I consider all such details to be within scope. Absent my agreement on specific instances, I consider all staff names in the documents are within scope and are not irrelevant to my request.
As the FOI Guidelines relevantly explain, at [3.54]:
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 believes it can provide sufficient evidence that staff details should be exempted from disclosure, it should do so. Otherwise, the details should be disclosed.
s 47C deliberative material
Opinions about me as a person constitute personal information and are not exempt from disclosure as they are “content that is merely descriptive” and thus not deliberative matter.
The frankness and candour argument against disclosure has been dealt with and dismissed on many occasions and is specifically discussed in the FOI Guidelines at [6.79]-[6.85]. The decision maker has not provided evidence that any of the multiple situations here are special nor specific. It is unlikely that all of the many s 47C exemptions claimed meet the standard required.
s 47E(d) substantial adverse effect on operations
The claim that publication of “statistics and discretionary decision making process[sic] and procedural information” would “negatively affect the conduct of the operations of the Agency because it would enable customers to circumvent established processes for the purpose of obtaining a material benefit” is a bold one. Insufficient evidence or argument has been provided that this adverse outcome could reasonably be expected.
If the mere knowledge of the process and procedure for making decisions would enable customers to circumvent them, they are not very robust. Hiding the department’s poorly designed processes from public scrutiny may be in the department’s narrow, private interest, but it is not in the public interest. It is in the public interest that such feeble processes and procedures should be examined so that they can be strengthened.
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,
Justin Warren
Thank you for contacting the Freedom of Information (FOI) team in Services
Australia.
This email acknowledges your correspondence and provides some general
information in relation to FOI.
Timeframe For processing your request
Under the FOI Act you have a right, with limited exceptions, to access
documents the agency holds. A FOI request normally takes 30 days to
process.
Please note this period may be further extended if we need to consult
third parties or for other reasons. We will advise you if this happens.
Charges
Services Australia 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 you provide us with an address which we can send
notices to. We will send all notices and correspondence to the address you
have used to email us. Please advise us as soon as possible if you wish
correspondence to be sent to another address or if your address changes.
Administrative release of documents
The agency has administrative access arrangements in place for the release
of certain documents without the need for a formal FOI request. These
arrangements do not extend to information or material of third parties.
Exclusion of junior staff details
Services Australia is working towards ensuring all staff have a choice
about whether they provide their full name, personal logon identifiers and
direct contact details in response to FOI requests. Where such details are
included in documents they will be redacted. If you request staff details
as part of your FOI application, this may add to processing time and
applicable charges as it will be necessary to consider whether these
details are exempt under the Act.
Dear Mr Warren
Please find attached correspondence from Services Australia in relation to
your request for internal review under the Freedom of Information Act
1982.
Kind regards
Damien
Damien
Information Access Branch
LEGAL SERVICES DIVISION
[1]cid:image003.jpg@01D6B8DA.4DF87C40
Please note: This email and any attachments may contain information
subject to legal professional privilege or information that is otherwise
sensitive or confidential. If you are not the intended recipient of this
email, you are prohibited from using or disseminating this communication.
If you have received this communication in error please notify the sender
immediately and permanently delete this email.
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Dear Mr Warren
Please find attached the decision letter and documents relating to your
internal review request under the Freedom of Information Act 1982.
Kind regards
Damien
Information Access Branch
LEGAL SERVICES DIVISION
[1]cid:image003.jpg@01D6B8DA.4DF87C40
Services Australia acknowledges the Traditional Owners of the land now
called Australia. We pay our respect to all Elders, past, present and
emerging of all Aboriginal and Torres Strait Islander nations.
Please note: This email and any attachments may contain information
subject to legal professional privilege or information that is otherwise
sensitive or confidential. If you are not the intended recipient of this
email, you are prohibited from using or disseminating this communication.
If you have received this communication in error please notify the sender
immediately and permanently delete this email.
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Justin Warren left an annotation ()
RightToKnow tracks when it sends an email to a department, and if you're logged in you can see the email logs that show the delivery attempt and evidence it was successful, if it was.
No idea what happened internally at Services Australia in this case, but they definitely received my email on 3 May 2022.
Maybe their special "oh no, not him again" filter was broken?