Dear Office of the Australian Information Commissioner,

Under FOI I seek copy of all documents (including emails, sms messages, file notes and any other ‘document’ type the FOI Act recognises) between the OAIC (which should mostly be Carl English) and any other area of the OAIC and any employee of the DVA that relate or refer to:
^ DVA FOI 24434
^ OAIC RQ18/02960 and
^ any communication about me

The scope of time period is 17 August 2018 to 11 October 2018 inclusive.

There was a invalid s 15AB extension granted for the purposes of an alleged planned third party consultation (which is not a s 15AB ground), and the OAIC did it in secret, without notifying me it had received and was considering such a request from DVA.

I was not given an opportunity to be heard, and my lawful right to access was modified by the OAIC inappropriately (when any third party consultation extension should have made under ss 26, 26A or 27, which are the only valid mechanisms through which extensions of time for third party consultation can be granted). I was only told after the fact.

The disturbing lack of transparency and the improper use of s 15AB by the OAIC require further investigation, which this FOI will assist me with.

Yours faithfully,

Julie

Dear Office of the Australian Information Commissioner,

Apologies, that should be ss 26A, 27 or 27A.

Yours faithfully,

Julie

Dear Ms Megan McKenna,

Thank you for your enquiry, which I am happy to give direction on.

As you would be aware, published on the OAIC website - Freedom of Information - Rights and Responsibilities page the OAIC has published the following:
“The FOI Act promotes government accountability and transparency by providing a legal framework for individuals to request access to government documents”

The Macquarie Dictionary defines accountability as ‘the expectation that public servants answer for their performance’ and transparency as ‘the policy or practice of making all operations clearly manifest, and being accountable to the public for all such operations’.

There have been a series of decisions where the issue of the names of public servants in documents within the scope of an FOI request have been considered, and a clear line of precedent has been established by those decisions, which has no reason to be set aside merely because of the intense dislike of some within in the public service of transparency and accountability.

The well established line of authority is the same as that reflected in the Information Commissioner FOI Guidelines, which is:
“Where public servants’ personal information is included in a document because of their usual duties or responsibilities, it would not be unreasonable to disclose unless special circumstances existed. This is because the information would reveal only that the public servant was performing their public duties”

Therefore the presumption is that the names of public servants and/or agency employees carrying out their duties will be routinely disclosed, just as it would be via other common disclosure activities, such as via routine Departmental correspondence with the public, publishing in various gazetteers and other Commonwealth publications (including Government directories and online material), and through public access via the National Archives.

The public interest in having an open and accountable executive, which in Australia, includes the activities of agencies and its staff (as they are part of the executive arm of government), is reflected by the Australian Government’s decision to take part in the Open Government Partnership, which is a multilateral initiative that aims to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance.

The key philosophy in the Open Government Partnership (OPG) that the Australian Government has committed to is the goal that governments will “become sustainably more transparent, more accountable and more responsive to their own citizens, with the ultimate goal of improving the quality of governance, as well as the quality of services that citizens receive”, embracing the core values of transparency, participation and accountability.

The OGP states that transparency means the public are entitled to visibility of the workings of their government, participation means that public can influence the workings of government by engaging with public policy processes and public service providers (which requires transparency as otherwise the public cannot identity how to go about this), and accountability means the public can hold the government to account for its policy and service delivery performance.

As the OPG states:
“The OECD, in Modernising Government: The Way Forward describes open government as ‘The transparency of government actions, the accessibility of government services and information, and the responsiveness of government to new ideas, demands and needs’... For example, the book Open Government Collaboration, Transparency, and Participation in Practice says that open government in its most basic sense is “the notion that people have the right to access the documents and proceedings of government”. However transparency on its own is not enough. Citizens need to be able to have a say about issues that matter to them and a chance to influence decision-making and hold those making decisions to account”.

In summary on this point, the Australian Government, both in its own published policy and guidance, and in the international agreeements and treaties it has agreed to be part of and subject to, concur that in order to uphold the principles of transparency, accountability and integrity, the disclosure of the names of public servants/public sector employees carrying out their duties is integral to an open, democratic and accountable government and to the health of the relationship between a government and its people.

In short, that the public have a right to know who in the government has made official decisions about them, and who in the government has made opinions about them and recorded them in the official records, so that the public have sufficient information to officially follow that up if they desire.

However, it is not an absolute rule and it does recognise that some limited circumstances may justify the withholding of the names of public servants. These exceptions, however, have a high bar and are not broad exemptions (otherwise abuse would be an ongoing issue), but are narrow in nature.

In Australia, the Courts and the Information Commissioner recognise these limited circumstances as “special circumstances” (highlighting they are extraordinary and against the normal presumption that release of these details would be provided in the ordinary course of events).

In satisfying “special circumstances” the Information Commissioner has previously stated that it is the agency that bears the onus of establishing that the special circumstances exist, in line with the standing presumption that release would be ordinarily provided in the normal course of events.

“Special circumstances” have been defined through a series of judgments as:

* A public servant or government employee that would otherwise be identified in a document would not be reasonable to be identified due to them being employed in undercover duties or their identification would otherwise jeopardise national security;

* A public servant or government employee that would otherwise be identified in a document would not be reasonable to be identified as there would be a real and likely risk to their personal safety if disclosure; and

* A public servant or government employee that would otherwise be identified in a document would not be reasonable to be identified, as the document in which they are identified is one that relates to disciplinary and/or criminal allegations about them, which are not yet determined (or which were found to be unfounded), and that as it is a disciplinary document relating to their employment which is unsubstantiated, it would be grossly prejudicial to identify them in that document.

In ‘FM’ and Department of Foreign Affairs and Trade [2015] AICmr 31, the Information Commissioner stated ‘there is no apparent logical basis for treating the names of SES officials as being within the scope of a request but of other officials as being irrelevant to the request’, despite this being a common but unenforceable practice within the Australian Public Service.

In Maurice Blackburn Lawyers and Department of Immigration and Border Protection [2015] AICmr 85 (18 December 2015), the Information Commissioner rejected arguments by agencies that disclosure of names of officers carrying out their duties in documents would:

* reasonably interfere with the privacy of the relevant SES and non-SES officers;

* unreasonably disclose information about non-SES officers that is not generally made publicly available on the Department’s website;

* risk the personal safety of individual junior Departmental officers or result in the occurrence of inappropriate communication outside of normal Department channels;

* cause its officers to become the subject of personal attack, public backlash, or to have their safety threatened by members of the public;

* result in the Department being unable to control who received this information;

* increase the risk of identity theft or the falsification of instruments;

* be appropriate because of a heightened level of media attention and criticism towards the Department, and that the Department has concerns about security;

* be inconsistent with the Department’s current practice and agreements with its staff not to publicly identify or associate non-SES employees as being Departmental employees; and

* be inappropriate given that professional public servants hold a reasonable expectation of confidentiality in these circumstances (the Information Commissioner stated that ‘Professional public servants are well aware that their emails may be subject to a request, and consequent release, under the FOI Act’).

The Information Commissioner found that accepting the Department’s submissions to refuse the applicant access would equate to the Information Commissioner being satisfied that special circumstances exist merely because the senders and recipients of the emails are departmental officers, which would be well below the threshold required for ‘special circumstances’ to apply, and the Information Commissioner could not ignore that increasing scrutiny, discussion, comment and review of the Government’s activities are some of the stated objects of the FOI Act.

The Information Commissioner’s decision considers when it would be unreasonable to disclose the names of departmental employees, and the Commissioner’s view when considering this question, was that there is no basis under the FOI Act for agencies to start from the position that the classification level of a departmental officer determines whether his or her name would be unreasonable to disclose in documents released under FOI. Where a departmental employee’s name is included in a document because of their usual duties or responsibilities, it is not unreasonable to disclose his or her name unless special circumstances exist. In seeking to claim the exemption the Information Commissioner stated “an agency needs to identify the special circumstances which exist rather than start from the assumption that such information is exempt” (like the OAIC has done here).

It is apparent that the names and contact details of public servants included in the documents in scope are there because of their usual duties or responsibilities, and no recognised special circumstances exist.

The people involved are:

* all Australian Public Service employees, therefore well aware their names would be disclosed in official records of this nature through FOI and other mechanisms;

* none of the persons involved have extraordinary circumstances (such as undercover duties); and

* the identity of the persons involved are either already known or else are completely unknown, and there is no evidence/suggestion of genuine risks to the operations of the agency or the safety to agency personnel in the release of names alone (notably, in a decision made by the Information Commissioner involving the CFMEU and the ABCC, the Information Commissioner considered the mere assertion by agency staff that they were ‘worried’ about disclosure was insufficient to met the high bar of ‘special circumstances’ but that it was the history of a series of “extremely serious nature of the threats made” by CFMEU staff towards the ABCC employees, that had both the AFP and the State Police involved, that justified the special circumstances).

In the circumstances of this FOI, the names of the APS employees within these documents are relevant because they will clearly provide significant contextual information, and transparency and accountability, to the decisions made and how they came about. Professional public servants are well aware that their emails may be subject to a request, and consequent release, under the FOI Act, as previously held by the Information Commissioner, and ‘special circumstances’ do not exist just because the author of the document is or was a member of the Australian Public Service (APS). The OAIC has not given any reason or justification that demonstrate ‘special circumstances’ exist, therefore the names of members of APS contained with the documents within scope would be disclosed in line with the standing doctrine that transparency and accountability will be shown.

It also has to be said that the OAIC has previously released the names of its staff in FOI decisions, and that there is no reason for a different standard to be applied here.

I do note the DVA, as an agency, aggressively fights transparency and accountability so does not release the names of its employees willingly. However, the issue at hand is not the desires of the DVA to avoid accountability and transparency, but whether a lawful reason exists to withhold release of information otherwise expected by the FOI Act to be released.

The Information Commissioner’s decision in ‘BB’ and Department of Human Services [2014] AICmr 11 (6 February 2014) is relevant in that regard. Claims of expectations that the names of departmental employees are ‘confidential’, were given in circumstances they assert were confidential (without any formal evidence that the information provided was subject to a binding confidentiality agreement, or would not have been disclosed otherwise), even if the Department’s enterprise agreement might have some wording to that effect (which the DVA does not have), were rejected by the Information Commissioner as creating special circumstances or supporting that disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of the Department.

Furthermore, the Information Commissioner stated that any claim about the effects of disclosure must be sufficiently serious or significant to cause concern to a properly concerned reasonable person, and requires the decision maker to assess both the likelihood of the predicted or forecast event, effect or damage occurring after disclosure of a document, such that a reasonable person would have an expectation that the effect or damage would occur.

Having reviewed the DVA’s decision notices over the last twelve months, particularly where these types of claims arose but were subsequently overruled or abandoned and there was some release of names, none of the alleged effects claims has been shown to have occurred.

It is possible that a risk may exist, but if it’s likelihood is so remote that it never occurs, it cannot reasonably be given any weight.

It must also be assessed against the names released routinely by the DVA in its own correspondence and public relations material and events and the material it publishes. A scan of material demonstrates the DVA has published the names of its employees (both SES and non-SES) in the past, and suffered no substantial prejudicial disruption, and its practice of refusing lately to release such information was only adopted after a series of negative news coverage by the Australian press about the DVA, about various operational failings it self-inflicted.

So, again, in this case, there is no lawful reason to support the standing doctrine that the names of APS staff would be routinely disclosed under FOI.

Of course, as the OAIC is already aware of all this, I’m teaching you how to suck eggs really. But as the OAIC, bizarrely, appears to be doing that which the Information Commissioner complained of in ‘FM’ and Department of Foreign Affairs and Trade [2015] AICmr 31, I guess a reminder was required.

Yours sincerely,

Julie

Dear Megan McKenna,

There is a poor quality (not even proofed, given the draft watermarked pages) letter put on this FOI by the OAIC the other day, that was not an FOI decision notice or other recognised document.

To avoid any doubt, this FOI remains open and requires a proper and valid response under the FOI Act - not shoddy and poorly written irrelevant letters (you might advise your Acting Director to proof check his correspondence in future as sending out draft correspondence is particular unprofessional, as was the ridiculous assertions in it).

Yours sincerely,

Julie

Dear Megan McKenna,

I’m not sure whether to be disappointed or just unsurprised that the small number of released documents are almost exclusively of material already here on Right to Know, and predominately are my own emails (as if I don’t have copy of them already).

A healthy government embraces transparency and accountability, but it seems we are far away from those days, for certain agencies and entities, which is rather saddening.

I would hope that especially since the s 15AB extension granted led only to another deemed refusal decision from the DVA, the OAIC would reflect these multiple abuses of processes by the DVA when considering future s 15AB applications from the DVA, but it seems very unlikely indeed.

Sincerely,

Julie