I've resent the request as the OAIC said they didn't get it

I got the below response from the OAIC privately:

Dear Mr Fairless

Thank you for your call this afternoon.

As discussed, I have been allocated your request for administrative access to documents held by the OAIC. If we determine that the request cannot be processed under administrative access, we will treat this as an FOI request under the Freedom of Information Act 1982 (Cth) and provide a decision in accordance with the Act.

I confirm that you have requested:
…any correspondence between the OAIC and the ATO (and other agencies) in relation to any decision not to process requests made via Right to Know.

In our conversation today, you agreed to exclude the second part of the request:
Can you please also provide any documents which relate to potential changes to the FOI Guidelines?

I confirm that your request of 19 August 2016 was brought to our attention on 5 September 2016. In light of the delay, we will endeavour to provide the documents next week.

If you have any queries, please contact me.

Regards
Caitlin Emery

Caitlin Emery | Assistant Director | FOI Dispute Resolution
Office of the Australian Information Commissioner
Level 3, 175 Pitt Street, SYDNEY NSW 2000
GPO Box 5218 SYDNEY NSW 2001| www.oaic.gov.au

It's interesting that the ATO's position is

> The administrators of the RTK website are themselves very difficult to contact. It appears that
the website is essentially run on a part time and volunteer basis. No telephone numbers or
business/service addresses are provided and the administrators can only be contacted via email.
In our experience, email responses are very slow, often taking several days.

> In the case we are concerned about, the ATO would probably not be successful in obtaining a
court injunction to remove the offending material on the grounds it was defamatory, or
threatening in a criminal sense.

Which is clearly a lack of effort of their part - the site provides a link to the OpenAustralia Foundation and that clearly has physical addresses.

To remove that objection entirely, it may be worth repeating the contact details on the footer and
https://www.righttoknow.org.au/help/cont...

Additionally, the ATO has simply failed to do the most basic of research; a WHOIS on the domain which lists the ABN and OpenAustralia Foundation details.

> Obtaining an anonymous email address from an email provider is easier, quicker and requires the provision of less personal information to a third party than obtaining an account at the RTK website.

This seems to be a bit poorly thought out, given RTK is effectively acting as an email service with some interesting features.

> We have no satisfactory means of removing unacceptable material promptly, or at all.

They highlighted their own means to do this: get an injunction if they believe they are in the right. Their inability to identify contact information for the purposes of bring a matter to court surely doesn't give them the ability to skip compliance with FOI legislation.

Adding physical address details to https://www.righttoknow.org.au/help/priv... would further remove that as an argument; no doubt in a similar way that people handle DCMA requests in the US.

> There have also been several instances where misguided applicants have requested and/or
obtained their own private material via RTK from government departments. The applications
themselves constituted breaches of the applicants’ privacy even though self-inflicted.

Would an tickbox at the point of making the request to insert a line into the FOI request remove this as an objection?

"I am requesting information that relates to myself, am aware it will be published on the RTK website, and am directing you to provide me such details. I'm aware of the Australian Privacy Principles (link)"

https://www.oaic.gov.au/individuals/priv... - section 6.1 (must not disclose unless 'the individual has consented to the use or disclosure of the information') and 6.2 (must not disclose unless 'the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order; or' - ie complying with an FOI request).

> makes finding the material disclosed in response to the request more difficult

The ATO's disclosure log fails to provide any links to the right documents:

https://www.ato.gov.au/About-ATO/Access,...

They are viewable by http://foi.iorder.com.au/ however given the practice of rendering responses to PDF images, are completely unsearchable.

If the ATO were to provide direct links, document text or searchable documents; or an OCR service; their claim might have some merit. I would wager extending an offer to the ATO to index their entire disclosure log and transcribe it (similar to NLA's trove?) would be entirely rejected.

Would be quite interesting to crowd source transcribing documents via RTK - even if it were a google doc with the OCR'd text in it or something simple like that. That'd give you out of the box collaborative editing with little technical effort, even if it did risk someone logging in, doing a CTRL+A and delete all content.

I think that some of the comments from the ATO General Counsel (as a person can read in the documents from the Office of the Australian Information Commissioner) are very interesting. Also I think that he is incorrect and mistaken in many of his suggestions.

ATO Counsel Statement 1: "From the ATO’s perspective the RTK website adds no value to what we already do. FOI applicants are already able to make FOI requests by email or electronic form via the ATO website, anonymously if desired. All general ‘public’ material provided to applicants (that is not personal, private, subject to tax secrecy, commercial-in-confidence, etc.), is already published on the ATO disclosure log on the ATO website where it is accessible by anyone."

Reply 1: The statement is based on the false assumption that the only material of interest to the public is the material that the ATO releases under FOI. In fact, because Australia is a very weak FOI jurisdiction, it is very often the refusal for an agency to release information that is informative and maybe more informative than the information that it does release. So, for example, the ATO does not publish on its websites the requests that it refuses and the basis for the refusal. Also, it is informative to the process of representative democracy to know what information an agency is willing to release even when it is not required under FOI. For example, the Australian Bureau of Statistics was asked to release the legal advice it received about the question "Is the name of a person 'statistical information'". The Bureau was not required to make the release and it refused to make the release. Yet it could have released the information and it would have improved the reputation of the Bureau that has been so damaged recently.

ATO Counsel Statement 2: ATO Counsel: The publication of all the 'procedural' correspondence about the FOI requrest serves no useful purpose, it merely clutters the internet with information that is of no interest to anyone, and makes finding the material disclosed in response to the request more difficult."

Reply 2: In this case ATO Counsel is also mistaken in t facts. The internet (or, better, the web) is not a box with a fixed size; it is a network that grows in exact proportion to material added. It is does not get cluttered. Also, we must believe that ATO Counsel does not find the 'procedural' correspondence to be of interest but the opinion of ATO Counsel is not a statement of objective fact. The procedural correspondence is of very great interest to all the people who read it on Right to Know and who annotate the material on Right to Know.

ATO Counsel Statement 3: Publishing material on Right to Know "makes finding the material disclosed in response to the requrest more difficult than it is on the ATO's website".

Reply 3: The statment is mistaken. It is possible, although I do not agree, that it is more difficult to find material on Right to Know than it would be to find it on the ATO website, but it is objectively untrue to say that to publish the material on Right to Know MAKES IT MORE DIFFICULT to find the material ..." If a person knows that the material she wants is on the ATO website, she will visit the ATO website or she will use a search engine to search the ATO website. And if she does not know that the material is on the ATO website, then she will use a search engine more generally.

ATO Counsel Statement 4: There have also been several instances where misguided applicants have requested or obtained their own private material via RtK ... The applications themselves have constituted breaches of the applicant's privacy."

Reply 4: The first sentence is true. The second sentence is untrue. It is true that there has been a disclosure of personal information and maybe it is true that the disclosure was poorly considered but it is untrue to say that there has been a breach of privacy. The ATO General Counsel has moved a word ("breached") from its correct meaning in one context (legal) to try to make it sound like the same thing in a different context (personal disclosure). When I disclose my personal information to you, I do not "breach" anything, even if I did not intend to let you know this information.

It is also interesting to observe that this annotation and comment would not exist without Right to Know. The request I am making this comment on is only visible because of Right to Know.