Dear Office of the Australian Information Commissioner,

Under FOI I seek copy of all emails and other records of communication between Carl English of your Office, and DVA, for the period 18 August 2018 to 28 September 2018 inclusive.

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Yours faithfully,

Verity Pane

Dear Caitlin Emery,

If the document refers to a private individual (which is not a public servant carrying out their official duties, as that falls into official, not private information), other than myself, it may be excluded from scope altogether.

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.

So yes, I do not consent to the redaction of names of DVA or OAIC public servants in any official document within scope.

I do consent however to the redaction of phone numbers, email addresses and desk locations as they are not necessary for accountability and transparency purposes, and are merely incidental information.

I do consent to exclude from scope any document that refers to a private individual (which is not a public servant carrying out their official duties, as that falls into official, not private information), other than myself. For that reason I do not exclude file reference numbers or other reference numbers, as they would not reveal the private personal information of another private individual

Sincerely,

Ms Pane

Dear Caitlin Emery,

Also does the OAIC intend to do anything about their failure to met the s 15(5)(b) deadline on FOIREQ18/00124, which has forced that FOI into deemed refusal.

Despite it being a couple of days now since notification of deemed refusal has been provided, I’ve yet to receive any response from the OAIC, who should have been demonstrating best practice, not ignoring FOIs such that deemed refusal occurs.

Yours sincerely,

Verity Pane

To Ms Megan McKenna,

I seek internal review of your decision. It has been determined time and again by the superior courts that the name of a public servant carrying out their duties *is not* personal information, and even the IC FOI Guidelines state so.

That the OAIC doesn’t even appear to read its own guidelines and past decisions is just disappointing.

Confidentiality cannot be claimed on documents that are known to be subject to disclosure either, such as s 15AB applications. There is no guarantee or statutory provision to such non-disclosure and you don’t get to make it up after the fact.

Will the OAIC stop betraying its official mission and official objectives, and start being the legitimate regulator it is supposed to be (instead of just waving FOI/privacy abuse after abuse by agencies through, and undermining the whole system so it just becomes a hollow pastiche)

Sincerely,

Verity Pane

Attn Megan McKenna,

I’d also like to note the sloppy work by Carl English, including this statement written by him:
“However, Ms Pane’s retains an obligation to provide Ms Pane with a substantive decision as soon as practicable.”

It would be worth reminding Mr English that applicants don’t write the decision notices they are required to receive, in the same fashion that a deemed refusal once replaced, is no longer a deemed refusal decision. Similarly, what’s the reference to advice about privacy law in an FOI about external legal services expenditure - no such advice was received was DVA and neither is it’s DVA place or function to do so (yet another phantom claim I see).

It says it all that while DVA and the OAIC collaborated to ensure the IC Review of the deemed refusal would be demanded by the OAIC to be withdrawn because of the substitution by DVA (with that IC Review to be closed if it wasn’t by the OAIC), it also intervened to illegally convert a valid and registered Internal Review back to the Internal Review it was trying to close.

Really, it’s absolutely farcical and 100% unethical.

And that game playing is still continuing now - given the internal review became a deemed affirmation and the OAIC is trying to duck shove that so as to simply ignore the whole thing.

Finally, there is absolutely no mention of any extended or sought confidentiality in any of the correspondence released, so your claims that it was only provided because confidentiality was guaranteed are simply false and fraudulent (you cannot insert after the fact that which wasn’t there to begin with). It is also telling that that emails got replaced with phone calls obviously after the illicit substitution of the Internal Review.

Honestly, you should take up careers as fiction writers given the extent of the stuff you simply make up, absent of any evidence or factual content.

Sick of the typical bad faith OAIC games,

Verity Pane