Dear Australian Public Service Commission,

There is a redacted document published on the APSC’s FOI disclosure log. The reference is LEX 695. The document’s date of access was 27 November 2023 and the document is described as a public interest disclosure report regarding the recruitment of registrars of the Federal Court of Australia: https://www.apsc.gov.au/sites/default/fi...

Pursuant to the Freedom of Information Act 1982 (Cth), I request an unredacted copy of that report regarding the recruitment of registrars of the Federal Court of Australia.

Yours faithfully,

BZ

Dear Sue Mahony,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Australian Public Service Commission's handling of my FOI request 'Document - LEX 695'.

I will address the key grounds you have raised, which you claim support your decision.

Yu

At paragraph 11, you claim that Yu applies to your decision. It is actually not relevant to your decision because the material facts in this instance diverge from the material facts in Yu.

At no point was it raised in Yu that the Bureau of Meteorology’s PID investigation was fundementally flawed. You have acknowledged, at paragraph 21, that “some of the documents related to this [PID] process have been made available online”, with many of those documents having been made available by the APSC.

For example, the APSC has published the Commonwealth Ombudsman’s letter commencing an investigation into Kate McMullan’s mishandled PID investigation: https://www.righttoknow.org.au/request/9....

The Ombudsman would not commence an investigation into the mishandling of a PID investigation if it had not been mishandled. So comparing the instant fact situation to that in Yu is misleading and fallacious.

Section 47E(d)

You claim that section 47E(d) of the FOI Act applies to the document but it does not.

Where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional exemption will not be met and the conditional exemption will not apply: FOI Guidelines 6.123.

The PID report is riddled with errors and falsehoods.

At the last round of Senate Estimates, Senator Shoebridge took up the challenge that the Hon Anthony Whealy KC issued to the administrators of the Federal Court in an article published in The Australian and, in that vein, issued the Federal Court with many probing questions about the decision of members of a selection committee to selection “Mr B” (one of the registrars referred to in the PID report) ahead of meritorious candidates like Dr Natalie Cujes: see the website of the Australian Parliament –

https://www.aph.gov.au/api/qon/downloade...

https://www.aph.gov.au/api/qon/downloade...

https://www.aph.gov.au/api/qon/downloade....

According to an article published in The Australian on 8 February 2022, Kate McMullan stated that “in [Mr B’s] case, there was a clear pathway to eligibility within a reasonable time after the recruitment process, which was signalled in his application and CV and that it was reasonable to expect that other members of the community who had an anticipated date for admission to legal practice in the very near future would have felt it open to them to apply for the position”: https://www.fedcourt.gov.au/__data/asset....

Obviously Kate McMullan misapprehended the legal issue before her because she was investigating whether three member of a selection committee engaged a candidate who did not have essential qualifications for a role ahead of candidates who did, contrary to the merit based selection laws set out in the Public Service Act 1999 (Cth).

Neither the Hon Anthony Whealy KC nor Senator Shoebridge appear to have bought Kate McMullan’s fallacies and, accordingly, they have sought explanations in the light of the requirements of the Public Service Act 1999 (Cth) (and not Kate McMullan’s made up criteria).

Since the report has inefficiencies on its face and discloses the unlawfulness of Kate McMullan’s investigation, section 47E(d) has no application to the document.

Section 47E(c)

The reasons set out in respect of section 47E(d) apply in respect of s 47E(c).

The report has been released under the FOI Act by the Office of the Commonwealth Ombudsman.

A substantially unredacted copy of Kate McMullan’s PID report has been released by the Office of the Commonwealth Ombudsman and is, as you have conceded about many of the documents relating to this request, been published online, according to law. Therefore, it is pointless and, on a legal level, unlawful to refuse to grant access to anything that is more redacted than the published version. I’ll spare the APSC the embarrassment of the link to the document but will gladly provide it during the IC review stage if the APSC does not publish the PID report on internal review.

Section 47F

Section 47F does not apply because the names of the registrars have been published repeatedly in documents that have been released under the FOI Act. Links to the documents published online can be provided at an opportune time.

Digital fingerprints on documents

There is no point in withholding your identity (“SM” “EL2”) as the decision maker if the decision you have published has your digital fingerprints all over it.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/d...

Yours faithfully,

BZ

Dear Melanie McIntyre,

I refer to your email dated 4 September 2024, which you sent to my private email address. That email is about IC Review MR24/00901.

The proposed times for a telephone call to enter into a consultation do not work for me. Pursuant to paragraph 3.10 of the Directions as to certain procedures to be followed by agencies and ministers in IC reviews, I advise that my preferred mode of communication is email. Please send all correspondence to me by email. You may communicate with me via my private email address for the foreseeable future, although I reserve my right to communicate with you via RTK, which is how I made my original FOI request.

In anticipation of your engagement with me, I again draw your attention to a substantially less redacted version of the document you have released to me. The document was released under the FOI Act by an official in the Office of the Commonwealth Ombudsman.

I eagerly anticipate a substantive email commencing your engagement with me.

Yours faithfully,

BZ

Dear FOI officer,

In response to your questions and comments, I note the following.

The substantially unredacted copy of the document I have requested was released under the FOI Act by a senior legal officer in the Office of the Commonwealth Ombudsman on 14 January 2022. The reference for the decision made by the senior legal officer is FOI-2021-10120. The document in question was part of a packet of documents released by the senior legal officer.

The substantially unredacted document that I refer to was drawn to the attention of the OAIC as part of my IC review request. A link to that document was included in my IC review request and has been available to you since at least 20 August 2024 because the IC review request document that I submitted to the OAIC was sent to the APSC by Ellie O'Kearney on 20 August 2024: https://www.righttoknow.org.au/request/1...

Feel free to corroborate what is noted in this email with the Office of the Commonwealth Ombudsman.

I hope that this information will give you the information you need to release the document that I have requested from you in its unredacted form.

Yours sincerely,

BZ

Dear FOI officer,

I refer to your email sent to the Right to Know website: https://www.righttoknow.org.au/request/d....

In that email you noted that there was a screenshot of a failed attempt to access the substantially unredacted copy of the document that I requested, and which was released under the FOI Act by a senior legal officer in the Office of the Commonwealth Ombudsman. Specifically, you stated "Please be informed that the link to the substantially redacted document you refer to cannot be opened by the Commission, see screenshot below."

There is no screenshot set out in the email that you sent to Right to Know, so your claim cannot be verified.

Also, I have tested the link that I recorded in the IC review application and it works perfectly.

In that email, you also stated:

"If you can provide a working link or the document itself as an attachment,
the Commission may be able to assist you further. However in the absence
of such relevant information, the Commission maintains its position that a
substantially redacted version of the document was not released under the
FOI mechanism. This Commission also consulted with the Commonwealth
Ombudsman about this matter.

Unless you are able to provide the document or a working link the
Commission is unable to assist you further."

Unfortunately, it is not possible for me to upload documents through Right to Know. For that reason, I have attached a copy of the substantially unredacted document, which was released by the Office of the Commonwealth Ombudsman under the FOI Act, to an email that I sent to the APSC from my private email address (which Melanie McIntyre sent an email to 4 September 2024 setting out a schedule for potential telephone calls).

I have also set out the link to the master file of the substantially unredacted copy of the document requested in that email from my private email account. That master file has pdf, html, txt and epub versions of the document requested.

I look forward to receiving an unredacted copy of the document I have requested or, in the alternative, an email in which the APSC substantively engages with me on narrowing the scope of disagreement.

If applicable, any and all submissions should be sent to me via Right to Know by the end of 1 October 2024.

Yours sincerely,

BZ

Dear FOI officer,

This morning, a user on Right to Know drew my attention to an attachment to your email of 17 September 2024: https://www.righttoknow.org.au/request/d...

If would appear that the screenshot you referred to in your email was an attachment to your email.

I acknowledge receipt of the screenshot as an attachment to your email and apologise for not noticing it earlier.

That said, I have provided the APSC with the unredacted document that you requested. I have also provided the public master file link of the unredacted document that you requested. Again, I note that the substantially unredacted document was released under the FOI Act by a senior legal officer in the Office of the Commonwealth Ombudsman in January 2022, and it has been published online. I would appreciate receiving the unredacted copy of the document I requested access to earlier this year.

Yours sincerely,

BZ

Dear Ms O’Kearney

Please find my submissions in response to the APSC’s set out below.

1. Consultation

The APSC did not attempt to narrow or eliminate the scope of dispute during the 6 weeks it had to do so.

All the APSC did was issue demands for information and then insist, even in the face of information demonstrating that the document that I requested has been, in a substantially unredacted form, been released by the Commonwealth Ombudsman, that their “position” was that the document was not released: https://www.righttoknow.org.au/request/d....

Even when the Ombudsman confirmed to them on 24 September 2024 that the document had been released by the Ombudsman pursuant to the FOI Act, the APSC still refused to engage with me to narrow the scope of dispute.

2. Section 65

The APSC claims, at [4] of its submissions that is “would, in the view of the Commission, possibly be an offence to release this particular document in full or significantly redacted” because “there do not appear to be any relevant exemptions under subsection 65(2) that apply to an FOI Act request.”

No justification is provided to explain why it would “possibly” be an offence to release the document. The submission is, at best, weak.

First, section 65 as noted was repealed in July 2023. It no longer applies. How would granting access to the document requested today be a contravention of a repealed provision? No explanation is provided. What would the charge sheet set out? Contravening a repealed provision that, in the past, made it an offence to disclose a document?

Second, assuming section 65, as it was prior to July 2023, still operates (and it does not for the reasons provided above), the enactment specifically provides that the offence does not apply “if the protected information has previously been lawfully published, and is not intelligence information”: section 65(2)(e). The person who wrote the submissions has conceded that the substantially unredacted version of the document that is published online was released by the Office of the Commonwealth Ombudsman pursuant to the FOI Act. Therefore, the document was released pursuant to a law of the Commonwealth and lawfully published. Thus there could be no offence in releasing, at the very least, the substantially unredacted version of the document.

Third, version 2 of the Ombudsman’s Agency Guide to the PID Act, which was in operation from April 2016 until 30 June 2023 provides, at part 7.5.3:

“Section 82(2) of the PID Act provides that the PID Act does not detract from any obligations imposed on an agency or a public official by any other law of the Commonwealth. Documents associated with a public interest disclosure do not attract any special exemption from the operation of the FOI Act. Requests for access to documents under the FOI Act must be considered on a case by case basis. A range of exemptions may apply to certain agencies and to individual documents or parts of documents, particularly in relation to material received in confidence, personal information, operations of agencies, and law enforcement.”

Thus, the correct position, set out in the Agency Guide prepared by the Office of the Commonwealth Ombudsman (the agency with oversight of the PID scheme), is that:

a) the PID Act does not detract from any obligations imposed on an agency or a public official by any other law of the Commonwealth; and

b) documents associated with a public interest disclosure do not attract any special exemption from the operation of the FOI Act.

Therefore, the submission that “there do not appear to be any relevant exemptions under subsection 65(2) that apply to an FOI Act request” is nonsense.

If you would like a link to version 2 of the Agency Guide to the PID Act prepared by the Office of the Commonwealth Ombudsman, please let me know. I will provide you with a link.

3. Section 47E(d) of the FOI Act

It is pointless to argue that releasing the document that I have requested would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

The APSC has conceded that a substantially unredacted version of the document has been released under the FOI Act by the Commonwealth Ombudsman and that the document is published online. The APSC has provided you with the link to the document.

What would the SUBSTANTIAL ADVERSE EFFECT be? There couldn’t be a substantial adverse effect because the information in the document is in the public domain.

4. Section 47E(d) does not apply in the case of inefficiencies and errors

Where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional exemption will not be met and the conditional exemption will not apply: FOI Guidelines, [6.115].

As I have already noted, there are many inefficiencies and errors of law in the document requested.

One example relates to “Mr B”. In my internal review application, I noted:

“The PID report is riddled with errors and falsehoods.

At the last round of Senate Estimates, Senator Shoebridge took up the challenge that the Hon Anthony Whealy KC issued to the administrators of the Federal Court in an article published in The Australian and, in that vein, issued the Federal Court with many probing questions about the decision of members of a selection committee to selection “Mr B” (one of the registrars referred to in the PID report) ahead of meritorious candidates like Dr Natalie Cujes: see the website of the Australian Parliament –

https://www.aph.gov.au/api/qon/downloade...

https://www.aph.gov.au/api/qon/downloade...

https://www.aph.gov.au/api/qon/downloade....

According to an article published in The Australian on 8 February 2022, Kate McMullan stated that “in [Mr B’s] case, there was a clear pathway to eligibility within a reasonable time after the recruitment process, which was signalled in his application and CV and that it was reasonable to expect that other members of the community who had an anticipated date for admission to legal practice in the very near future would have felt it open to them to apply for the position”: https://www.fedcourt.gov.au/__data/asset....

Obviously Kate McMullan misapprehended the legal issue before her because she was investigating whether three member of a selection committee engaged a candidate who did not have essential qualifications for a role ahead of candidates who did, contrary to the merit based selection laws set out in the Public Service Act 1999 (Cth).

Neither the Hon Anthony Whealy KC nor Senator Shoebridge appear to have bought Kate McMullan’s fallacies and, accordingly, they have sought explanations in the light of the requirements of the Public Service Act 1999 (Cth) (and not Kate McMullan’s made up criteria).

Since the report has inefficiencies on its face and discloses the unlawfulness of Kate McMullan’s investigation, section 47E(d) has no application to the document.”

There are also other errors, and one need only type in the reference to the investigation “PID 2020 400006” in a search engine to find scores of documents referring to those errors.

Another example of unlawfulness or inefficiency in the document requested relates the recruitment of a “Ms O”. The investigator, Ms McMullan, claimed that the Federal Court provide her with the selection report for the SESB1 role that Ms O was given, and also provided the vacancy notice for the role, but the Federal Court has repeatedly noted, in FOI decisions that can be accessed online, that:

a) there never was a vacancy notice published in the Public Service Gazette for the SESB1 role given to Ms O; and

b) there is no selection report for the decision to give the SESB1 role to Ms O.

These decisions are published online.

Please let me know if you would like links to the decisions.

Since the document that I have requested discloses false material findings of fact, which the investigator recorded to exculpate those responsible for unlawfully recruiting a person into the Australian Public Service, it follows that disclosure of the document would reveals unlawful activities or inefficiencies. Therefore, section 47E(d) of the conditional exemption will not be met and the conditional exemption will not apply to the document.

A further error relates to the investigator’s material finding that a “role review” occurred. According to FOI decisions on this website, there is no evidence of a role review:

https://www.righttoknow.org.au/request/r...

https://www.righttoknow.org.au/request/r...

If you would like, I can note more errors, inefficiencies, and/or unlawfulness set out in the document requested.

5. Section 47F

It is also pointless to argue that section 47F applies to the document that I have requested.

In order to claim that conditional exemption, one must have regard to:

a) the extent to which the information is well known; and

b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document; and

c) the availability of the information from publicly accessible sources.

The substantially unredacted version of the document that is published online, to which you have a link, and which anybody in the world can access, identifies the individuals to be associated with the matters dealt with in the document.

The APSC’s own FOI decisions, which are published on this very website, identify the individuals to be associated with the matters dealt with in the document: e.g. https://www.righttoknow.org.au/request/1...

Substantial details have also been recorded in newspaper articles in The Australian and the AFR about this matter, and the details of people associated with matters in the document that I have requested have been discussed during Senate Estimates hearing (Legal and Constitutional Affairs Committee hearings). If you would like me to provide links to questions on notice as well as copies of Hansard, please let me know, and I will do so at a moment’s notice.

Given that the names of individuals associated with the matter set out in the document requested are lawfully published online in document released under the FOI Act, and have been the subject of public commentary, and the information is well known (being the subject of no fewer than 5 media articles in newspapers of record), it follows that section 47F does not apply to the document requested.

7. Section 55D of the FOI Act

Section 55D of the FOI Act provides that the APSC has the onus of establishing that its decision to release a near completely redacted version of the document that I requested is justified.

For the reasons provided, that cannot be the case. A substantially unredacted version of the document has been lawfully released under the FOI Act by the Commonwealth Ombudsman and has been published online. That substantially unredacted document should be the starting point of the APSC’s consideration of my FOI request.

8. Request for an “UNREDACTED copy of that report regarding the recruitment of registrars of the Federal Court of Australia”

There are redactions on that substantially unredacted document, which you have a link to, that must be removed.

For example, the substantially unredacted document obscures the identify of the agency to which the document relates. The APSC has explicitly noted in its submissions that the document relates to the Federal Court. That redaction cannot continue to apply.

Similarly, the redactions on the details pertaining to vacancy notices on page 10 of the document, which are public documents (having been published in the Public Service Gazette) that can be accessed online by anybody in the world, cannot be maintained.

As I’ve noted, the names of the individuals concerned with the content in the document cannot remain redacted because the document that you have been provided a link to expressly identifies those individuals. So too do the FOI decisions of the APSC, which are published online and on this website.

A search of “PID 2020 400006” in a search engine or on archive.org returns scores of documents relating to the matters in the document that I have requested.

Finally, I note that the APSC submits at [28] “The Commission does not propose to make a decision under section 55G to again ‘release under the FOI Act’ a document provided by the Applicant that they already have access to.”

I do not have access to the document that I requested. I requested access to “UNREDACTED copy of that report regarding the recruitment of registrars of the Federal Court of Australia”: https://www.righttoknow.org.au/request/d.... The APSC’s submission is not to the point because I want access to a completely UNREDACTED copy of the document that is published online, and not a substantially unredacted copy.

Please let me know if you have any questions. As noted, I can provide links to any documents that I have referred to in this set of submissions at a moment's notice.

These submissions will be provided to the APSC immediately.

Yours sincerely,

BZ

Dear APSC,

Please find my submissions in response to your submissions of 1 October 2024 set out here:

https://www.righttoknow.org.au/request/d...

Yours sincerely,

BZ