Dear Department of Veterans' Affairs,

Under FOI I seek copy of all Departmental emails and any other records in TRIM or on the Information Law and/or Legal Services G: drive that relate to scoping study calculations for DVA FOI 23544 & DVA FOI 23863 & DVA FOI 21147, including communications about collecting and sampling records related to DVA FOI 23544 & DVA FOI 23863 & DVA FOI 21147.

While the names of DVA officers performing their official duties in the course of their employment is not personal information, nor operational sensitive, and therefore consent is not given to redact such information, the email addresses and telephone numbers may be redacted with consent.

I note that each FOI applied to a discrete period and would have involved only the relevant delegate and one or two other Departmental staff in the normal course of events, therefore the scope is limited and would cover only a small number of documents.

Yours faithfully,

Verity Pane

Dear Position Number 62212962, Legal Officer, Information Law Section,

Recently published here on Right to Know was an OAIC document and decision that specified that s 26(1)(b) and OAIC FOI guideline 3.181 work in tandem to require that any FOI decision that relates to a document of an agency, must disclose in the FOI decision notice, their identity.

The OAIC stated in its 8 June 2018 ICON circular to agencies that:

Where the decision relates to a document of an agency, the decision notice needs to include the name and designation of the person making the decision, including the decision maker’s first name, surname and title, to clearly explain their authority to make the decision [FOI Guidelines 3.181]

The decision notice I received today from DVA is non-compliant with that and in breach of s 26(1)(b) and Guideline 3.181, in that a pseudonym instead of the actual name of the delegate has been used.

I therefore seek internal review of the FOI decision notice received today on that ground in the first instance, and will add further grounds later.

Yours sincerely,

Verity Pane

Dear Position Number 62212962, Legal Officer, Information Law Section,

Another ground of review is that instead of redactions being made to the documents in the proper fashion (that is blackout of that to be redacted), it is apparent that some redactions instead have been applied by directly editing the actual text of the actual source document, such as to create a new document that is no longer an original copy of the source document).

Directly deleting and modifying text with a document, replacing words with XXXXXXs is totally inappropriate and amounts to improper tampering with the documents.

It raises questions of fraud, in that the text of the source document has been tampered with, rather the redactions overlaying the original.

Given DVA’s appalling lack of ethics and level of corruption of its officers (didn’t 7:30 just recently air how DVA retrospectively deleted parts of its manual to deny an otherwise entitled veteran, then lie about it to Parliament, the Senate and the Court, until Minister Payne had to admit - after being confronted with the evidence DVA had done this - it had engaged in this corrupt practice), the integrity of the released documents is now compromised.

This is an gross breach of practice, but then again DVA seems to delight in doing these things.

Yours sincerely,

Verity Pane

Dear Position Number 62212962, Legal Officer, Information Law Section,

I’d also add that DVA has previously and properly done its redactions in the past in black block (as that is how the redaction function in Adobe works), with red exemption ground overlayed.

However, in this release, DVA (where it hasn’t directly modified the text) has used white on white redactions, so as to obscure what has been redacted. That is an abuse of process and a further ground of objection for the internal review.

Yours sincerely,

Verity Pane

Attn DVA,

A further ground for the Internal Review is that the s 47E(d) editing (rather than redaction) of the names of DVA Departmental staff carrying out their official duties is not personal information, but official information (it may be related to them, but it essentially the ‘metadata’ of the official record and not about them personally, therefore not coming within the scope of personal information).

It is a major over-reach to infer that the release of this official information would prejudice operations.

It may well be the names of the Department’s staff may reveal details about the email addresses of individual officers, although you do not explain how, but if SES officers have their full names provided, the same alleged prejudice already occurs. And this is rather ridiculous as you can see yourself that DVA released in the documents the full names, email addresses, telephone numbers, and other location details of some non-SES employees already (so it seems rather random who was edited out and who wasn’t or perhaps this was done just to obscure one person to cover up something)

While consent was given for irrelevant information such as email addresses, telephone numbers, and other minutiae to be redacted (but not edited directly it has to be said), no such consent was given to redact the names of public servants carrying out their official duties as this is a necessity to provide accountability and transparency and to check only those authorised to perform functions actually did.

According to your whistleblower, DVA has certain processes and the specific ability to channel communications from external parties, who communicate outside of established lines of communication, thereby preventing their bypassing. It is reasonable to expect that this would done, in any such event, to prevent the disruption of operations within the Department, to avoid such claims of adverse effect.

It is true, is it not, that DVA can and does easily redirect such communications but placing rules in its email server and/or PABX system to redirect such communications highlighted, and that DVA uses its CLU/CCS functions to enforce a SPOC in those instances (and that your Security area is quite capable of readily effecting those IT and communication changes to block or redirect such communications referred to).

As such, given the tools DVA has, no such prejudicial effect results, as DVA can readily manage such instances.

The OAIC, the AAT and the Federal Court have been quite clear here - public servants carrying out their official duties cannot hide their accountability trail unless very specific and limited conditions apply (namely that they have a DVO/restraining order or have covert duties).

Yours sincerely,

Verity Pane

Attn DVA,

I also add the following supplementary submission for the internal review

As explained in the Guidelines, personal information can include a person’s name, however, for information to constitute personal information it needs to convey or say something about a person, rather than just identify them.

As stated in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 by Heerey J, it is only if ‘the information disclosure were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed... [that] disclosure would be unreasonable’.

It has been consistently held by the AAT and the Federal Court that there is a greater public interest in demonstrating transparency and accountability in official records, extending to the identity of those public servants who authored them and made decisions based on them, unless limited special circumstances apply.

This is important in a democratic government as transparency and accountability ward off corruption and ethical abuses.

Recognised in both Federal Court and AAT cases and the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act, is ‘it is not unreasonable to disclose information about an individual public servant’s work related activities in his or her agency, such as the person’s name, or the manner in which the person carries out tasks or behaviour in the workplace’.

While disclosure of a public servant’s home address and other private personal information, such as date of birth details etc, would be unreasonable, details of work telephone number, email address and place of work, especially if already known, are not.

However, I have no interest in telephone numbers or email addresses or desk locations etc (so they may be redacted with consent), beyond the full name of the author and receiver (if provided) of any document, as that is all that is reasonably necessary for accountability purposes and to check only those persons with the authority/delegation to do things, did them (where applicable).

Empty claims of potential prejudice to operations must be assessed against the significant abilities of agencies to restrict and channel communications that occur outside of approved channels, such as restricting and redirecting communications via email server rules or PABX rules or using SPOC requirements, as well as the likelihood of such a risk (statistically the evidence is such risks are very low and quite uncommon). The situation is such that any potential prejudice likely to occur can be managed adequately with minimal effort by agencies, and indeed agencies have access to both legal and procedural measures to remedy any issues that may arise.

As held by the Full Tribunal in Williams, ‘personal affairs’ is construed narrowly. Beaumont J, in reasons agreed to by Senior Member McMahon and Member Renouf, held that ‘personal affairs’ refers to ‘matters of private concern to an individual’. His Honour’s view was that the phrase does not ordinarily include information about a public servant’s activity in their official duties. Something which gives only the ‘bare names’ of a public servant in official records was not a personal affair, unless it also included details such as their home address, age, marital status, children and salary (which would fall into personal affairs).

The Full Federal Court in Dyrenfurth, similarly, agreed that personal affairs’ refers to matters of ‘private concern’, not official information (and the name of a public servant recorded in an official document in the course of carrying out their official duties is clearly official information).

Re Marr and Telstra Corp Ltd [1993] AATA 328 commented that there was little practical difference between the terms ‘personal information about’ and ‘personal affairs of’, and that neither extended to the mere mention of officers’ names in an agency document. Re Subramanian and Refugee Review Tribunal [1997] AATA 31 at [42]-[43] said it was significant that the word ‘personal’ was still part of the personal privacy exemption, which indicated that it applied only to ‘information which concerns or affects a person as an individual’ and does not include ‘information relating to a person’s conduct in a work environment’. Three other decisions holding that work-related information was not personal information were Re Cook and Comcare [1996] AATA 95 at [34] (the names of agency officers who were informants about workplace conditions); Re Lalogianni and Australian National University [2001] AATA 347 at [34]-[43] (internal correspondence written by two University academics concerning a complaint against one of them); and Re Einfeld and Human Rights and Equal Opportunity Commission [2009] AATA 414 at [52] (a document seeking ministerial approval for overseas travel by a named statutory officer).

As has been stated by the Information Commissioner previously:
Two other suggested limitations on the phrase ‘personal information’ should also be noted. One is that information is only ‘about an individual’ (as required by s 4(1) of the FOI Act) if it says something about the individual. The other is that a person’s name is not of itself personal information.

Public servants are well aware that because, as part of their official duties, their names are recorded on both internal and external correspondence, and that these records may be retained and indeed released to the world at large, without their explicit consent being required to do so, as disclosures may be required or authorised at law, no existence of confidentiality of such details can be reasonable presumed, and indeed the Public Service Act includes requirements of being accountable and demonstrating transparency in their decision making at work, which includes identifying who they are.

It should be noted that the names of public servants are routinely published to the world at large, through the Australian Public Service Gazette or other publications, such that anyone can spend time identifying even junior employees in agencies, including their current job title and office location, often even their phone numbers (if they are a contact officer at some point).

There is, in fact, no confidentiality in existence over such details, apart from those public servants that have covert duties or whose details have been withheld due to them having a DVO extant, who are accorded exemptions from such publication in the gazette and the like (if a public servant has been promoted or transferred on secondment into their position, their name and the link to that position has already been published to the world.

The Gazette includes notices of examination, APS employment opportunities, APS staff movements, promotions and terminations of employment, as well as employment opportunities and staff movements in the Parliamentary Service, so reaches every corner of the APS. It is rare for the names of public servants to be withheld in that publication (again, only on the covert or DVO grounds). Anyone wanting to jump usual channels of communication already has access to all they need, just by searching through the Gazette looking for the relevant positions and identifying the full names of the officers that way.

Yours sincerely,

Verity Pane

IC Review it is then