Dear Department of Veterans' Affairs,

In light of recent media reporting and admissions by the Minister in Federal Parliament that the Department spent more than $0.6m in external legal services fees in regards to just one veteran - Martin Rollins - in relation to DVA’s deliberate backdating of a rewrite of a DVA policy to exclude Mr Rollins’ receiving a benefit he was entitled to at the time of his applying for it (http://www.abc.net.au/7.30/dva-secretly-... ) there is a public interest in understanding how the Department is expending public funds on external legal services.

While the Department reports just one summary total of expenditure on external legal services in its annual reports, this is clearly insufficient and far too opaque to understand what the Department is spending on external legal costs for individual matters. While this information does indicate the Department spends between $7m - $10m on external legal services roughly every financial year, it gives no indication whether it may relate to only a small number of individual veterans or many or what the Department roughly spends per legal issue - which is important to understand when considering if the claims that the Department is combative and litigious are overstated or not.

Certainly the recent admission (initially refuted) that the Department has spend in excess of half a million dollars, litigiously, to defend this backdated change of policy to deny Martin Rollins a benefit that existed at the time he applied for it (and ironically this legal expenditure many hundreds of thousands of dollars greater than the benefit he was otherwise entitled to receive), raises public interest questions whether such excessive external legal expenditure is endemic or is a one off isolated case.

To that end, under FOI, I seek under s 17 of the FOI Act for a summary document to be created (so as to avoid unnecessary disclosure of irrelevant Departmental information) from data in the Departments financial and information management systems, to break down these global external legal services expenditure, so that greater transparency is given.

I seek a breakdown to be provided for the last three financial years - FY17/18, FY16/17, and FY15/16 - and to be broken down to matters involving individual veterans and other. Where matters involved individual veterans, this should be further broken down to stating the cumulative external legal services expenditure per veteran involved (with each veteran referred to by pseudonym - so first veteran is Veteran A, next is Veteran B, and so on). In order to reduce burden, where external legal expenditure involving an individual veteran is below $10K cumulative for each financial year, they may be reported as a group (as the interest is in excessive external legal expenditure). An example of the layout I seek is below:

...............................FY17/18...................FY16/17....................FY15/16
......................................$...............................$...............................$
Other
Veteran A
Veteran B
etc
Veterans >$10K

Yours faithfully,

Verity Pane

Dear Unnamed Officer (Position Number 62210022),

While a rough estimation has been provided, it appears the Department is satisfied based on its enquiries that this FOI would take 60 leisurely hours for collection, assessment and decision issuance.

The primary basis of your agency’s practical refusal intention is that the amount of external legal services expenditure against veterans is very large, and covers a large number of matters. That does answer a question in, and of, itself that the Department is a frequent user of external legal services providers in litigation and opinion seeking against veterans.

But in light of this, if there is a willingness to pay for this, as per usual cost recovery processes in FOI, does the Department still intend to refuse access? Just because as FOI may exceed the free processing period is generally insufficient to refuse access, and mechanisms exist for requester contribution to be made in these circumstances.

You state to process the FOI application would deny others the opportunity to have their own FOI applications, but provide no supporting evidence to substantiate that. How many open and overdue FOIs does DVA have presently? Is there any reason a consent to extend the processing deadline cannot offset any intensity of resource allocation, as I would be prepared to consider that.

You also state the application covers ‘several’ financial years, despite only three being sought, and is too ‘broad’, yet paying for external legal services providers is not a common administrative practice and requires SES level approval. While making reference to this, you fail to provide enough information to allow for any stratification to adequately allow for any informed revision of scope to occur.

I would however be willing to refine the scope to FY15/16 in the first instance, which could have helpfully been identified in your estimates but wasn’t (instead you looked for factors to reject, rather than offer alternatives).

I guess the only thing we both agree in full on is that it is evident that DVA is a regular high frequency user of external legal services providers, over and above the more limited use by other agencies.

I still think that ways ahead exist, despite your claims to the contrary.

Yours sincerely,

Verity Pane

Dear Unnamed Officer,

As you waited until the second last day to issue a practical refusal notice, when practice is that practical refusal notification should be made within 14 days (and it appears the reason for the late issue was to intentionally delay progress of this FOI, unethically), I will only grant you an additional 14 days (plus an extra day or two to show I’m kinder than you) from the original statutory expiry date.

The new statutory deadline is therefore 5pm on Friday 31 August 2018.

Yours sincerely,

Verity Pane

Dear Megan,

As per our communication of 27, 28 and 29 August, in which we discussed that Veteran’s in being true to form, as causing extensive delay, would seek to create further delay by improper use of s 15AB, I see I was right on the money.

As per my communication of 27 August 2018, where “I therefore ask the OAIC to confirm if it has received a s 15AB extension from Veteran’s for FOI DVA reference 23368, and if so, to provide administrative release of their submission to me”, I point out that as per the OAIC Guidelines to agencies about s 15AB extensions (https://www.oaic.gov.au/freedom-of-infor...) that certain best practice steps should be followed.

Firstly:

“The Freedom of Information Act 1982 (FOI Act) requires agencies and ministers to comply with statutory timeframes for processing FOI requests. In some ***limited circumstances***, the timeframe may be extended, for example, with the agreement of the applicant or with the approval of the Information Commissioner.” [emphasis added]

I would point out that the Information Commissioner recognises at least in his advice to agencies that extensions of time (EOT) should not be given a low bar, but only granted in ***limited circumstances***.

Secondly:

“An agency may apply to the OAIC for an extension if the FOI request is complex or voluminous. The agency ***must justify why an extension is necessary***... ***Agencies must make a case for why the Information Commissioner should use the discretion under the FOI Act to extend the timeframe. Be as specific as possible.*** General considerations must be clearly linked to the actual FOI request in question” [emphasis added]

I would point out that the Information Commission puts a burden of proof on agencies to justify extensions. If an agency claims an FOI request is complex or voluminous, particularly where it has not made that claim to the requester after they reduced their scope by 2/3rd, the onus on the agency is to provide some proof beyond mere claim that supports such an assertion.

Thirdly:

The Information Commissioner states agencies need to give “early consideration to the need for an extension
. This creates options. You have time to consult the applicant on reducing the scope of their request, to negotiate an extension with the applicant, or to apply to the OAIC for an extension. It is good practice to keep an FOI applicant informed of developments with their application, including requests to the OAIC for an extension. You may choose to send the applicant a copy of your EOT application. This streamlines the process and can speed up OAIC response time, especially if the OAIC needs to consult the applicant about the extension. The OAIC will regard the applicant's agreement to the extension favourably in making its decision”

In this case, Veteran’s did not consult with me until the second last day of the statutory processing period that it intended to practically refuse the FOI (when such notification is generally required within 14 days of the FOI having been made, so as to give sufficient time for negotiation), and despite me agreeing to drop 2/3rd of the scope to satisfy the Department (for an FOI they claimed would take 60 hrs, but which they refused to provide any evidence beyond back of the envelope estimates that lacked any substantiation, therefore a reduction in scope by 2/3rd would result in an FOI of no more than 20 hrs processing time even under Veteran’s overestimated estimates).

Similarly Veteran’s did not notify me of its intentions to seek s 15AB extension, nor provide its reasons for doing so to me, nor negotiate any further after I voluntarily offered Veteran’s 16 days over and above the the original 30 statutory processing period. I have not being provided with a copy of their s 15AB extension claim either, and therefore am at a disadvantage in responding.

From the current information available it does not appear that Veteran’s has considered a staged release instead, nor even provided a timetable of actions it will undertake, as the Information Commission states agencies should do in her guidance to them.

Fourthly:

“A decision on your request will usually be provided within five working days. In certain circumstances the OAIC may need to consult with the FOI applicant or other affected parties. If this is the case, the extension may take longer to process. Generally the OAIC will consult the applicant where the extension sought is for a period longer than 30 days or where the agency is seeking to vary (further extend) an earlier extension granted by the OAIC. ***During consultation, the OAIC will often send the applicant a copy of the EOT application,*** so please advise if it contains anything sensitive that should not be passed on.” [Emphasis added]

As per the OAIC’s own guidelines to agencies, if the agency hasn’t provided its s 15AB application to the FOI requestor, the OAIC will do so, unless there is an exceptional reason, in which case only part of the s 15AB application will be given to the original FOI requestor, where the Information Commissioner has invited the original FOI requestor to respond to the s 15AB application.

I previously asked the OAIC for a copy of Veterans’ s 15AB application on 27 August 2018, and while the OAIC has previously stated no such s 15AB application existed, it has stated one exists as of today and invited me to make submission it on.

However, it is impossible to make submission on a s 15AB application I have not seen.

I cannot rule out the possibility, due to Veteran’s failures in communications, that it may have raised a valid and evidenced ground to support further time being given, but that it simply failed to communicate that to me. While unlikely, if this was the case, I would be willing to negotiate time with Veteran’s further.

And while it is more likely than not that this is the case, it is still inconsistent with administrative justice principles to ask for a submission on an application that the party has not seen, and therefore cannot effectively respond to.

Given the general 5 day processing period for s 15AB extensions, it would be appreciated that copy be given today.

Yours sincerely,

Verity Pane

————

From: Verity Pane
Sent: Wednesday, 29 August 2018 12:33:40 PM
To: FOIDR
Subject: Re: Veterans’ Affairs FOI 23386 - likely s 15AB request. Request to be heard. [SEC=UNCLASSIFIED]

Thank you Megan, that is appreciated. It’s a pity that agencies like Veteran’s, through improper conduct, cause an increase in burden on limited Commonwealth resources, that could have easily been avoided, simply by meeting the very low thresholds required under the FOI Act.

Sincerely,

Verity
From: FOIDR <[email address]>
Sent: Tuesday, 28 August 2018 11:06:10 AM
To: Verity
Subject: RE: Veterans’ Affairs FOI 23386 - likely s 15AB request. Request to be heard. [SEC=UNCLASSIFIED]

Dear Ms Pane

Thank you for your email.

The OAIC has not received a s 15AB extension of time request from the Department of Veterans’ Affairs in relation to your FOI request FOI 23368.

If a s 15AB request is received for FOI 23368, the OAIC will seek your submissions before making a decision.

If you have any further questions please do not hesitate to contact me.

Kind regards

Megan McKenna | Assistant Review Officer | Freedom of Information Dispute Resolution
Office of the Australian Information Commissioner
Level 3, 175 Pitt Street, SYDNEY NSW 2000
GPO Box 5128 SYDNEY NSW 2001| www.oaic.gov.au
Phone: +61 2 8231 4292| E-mail: [email address]

From: Verity Pane
Sent: Monday, 27 August 2018 8:03 PM
To: OAIC FOIDR
Subject: Re: Veterans’ Affairs FOI 23386 - likely s 15AB request. Request to be heard.

Dear Sir/Madam,

I write regarding a likely s 15AB request having been made by the Department of Veterans’ Affairs in respect of their FOI reference 23386.

The agency waited until the the day before the last day of the statutory period to give practical refusal note, in a blatant gaming of the statutory period for decision. Practical refusal notifications are required to be identified as soon as practicable and generally should be notified with 14 days.

Between this late practical refusal notice and the deemed refusal of a related FOI by this agency, it reminds me of the games Defence played with similar tactics, before I approached the OAIC about it, and Defence subsequently ceased engaging in unethical tactics and dropped all sham practical refusal stunts.

I advise, but I’m sure you already know, I advised Veterans’ Affairs I would reduce the FOI by 2/3rd, yet Veteran’s took another further 9 days to respond (and dropped the practical refusal), but wanted another 30 days (despite having allegedly done scoping work).

I have provided them 16 days instead, in recognition of the intentional delays Veteran’s have engaged in, and that the FOI is only 1/3rd of what it was originally.

Veteran’s has again engaged in delays, but it is apparent it is seeking a s 15AB extension instead.

I therefore ask the OAIC to confirm if it has received a s 15AB extension from Veteran’s for FOI DVA reference 23368, and if so, to provide administrative release of their submission to me, and to note that I oppose the s 15AB application on the grounds that Veteran’s artificially delayed processing of the FOI until the second last day of the statutory period, and then took excessive time to accept the 2/3rds reduction of the original scope.

The pattern of conduct shown by Veteran’s shows a contempt and gaming of the FOI legislation, including continuing to refuse to acknowledge a related FOI request, that has since become a deemed refusal and has now been referred to the OAIC for IC Review.

Sincerely

Verity

Dear FOIDR,

I forgot to add it is worth reflecting that Veteran’s have previously caused extensive delays to other FOIs I have made to them, included one valid FOI (https://www.righttoknow.org.au/request/c... ) they refused to acknowledge for the whole statutory period and even after it became a deemed refusal, until I made an OAIC IC Review application about it (and even then they drew it out), despite me confirming that had received each and every communication in that FOI.

While I reserve the right to make a submission with the benefit of having seen Veteran’s s 15AB appplication first, I offer this as something to reflect on in the interim.

Yours sincerely,

Verity Pane

Dear Carl,

As per Megan’s email of earlier today opportunity to respond was by 5 September, but I note you have reduced that now to 3 September.

I will endeavour to provide response by 3 September however, in order to allow the OAIC to make decision within five business, but I am unable to do so currently as the copy of Veteran’s s 15AB submission you have attached is not a copy of the Veteran’s s 15AB application at all (the other documents work though and are what they say they are).

Please remedy as soon as possible today.

Yours sincerely,

Verity Pane

Dear Carl,

Thank you, that version works.

I will still aim for the 3rd, to give you some additional time to consider.

I note DVA’s justification is not supported with any actual evidence beyond unsupported claims, nor demonstrates any consideration of staged release nor does it outlines the time each step will take for the revised scope, rather simply referring to the original practical refusal notification which is two thirds larger than the revised scope.

I also note DVA raises it is considering exemptions, despite that the summary statistic information (which for the financial information is all mandatorily recorded in a readily accessible form in DVA’s financial information management system against the account code for external legal services and is indeed reported to to another agency on a routine basis as per external legal services WoG rules; and for the connected information required to compile the s 17 document, all held by one discrete area of DVA with the Legal Services branch, readily accessible through their TRIM and G: drive) not having any exemption grounds it can support (as summary information in which consent to redact all information about who was involved and for it being structured to be referred to instead by generic references to stratify the statistics sought, the FOI was written to ensure any exemption ground would be nullified).

It also note that it has to be highlighted that despite the scope being reduced by 2/3rd, DVA claims processing time only reduces by half (yet their own overstated scoping numbers do not support this).

I also note DVA claims some information is not available to them yet, despite such information being in their possession and recorded in TRIM, their G drive and their financial information system (it would be stretching credibility to believe DVA is unaware of what money it spends until months or years later).

Yours sincerely,

Verity Pane

Dear Carl,

Sorry that should have stated 3 times larger, not two thirds larger. When the scope was reduced by 2/3rds, it requires it to be multipled by three to get back to the original scope.

Yours sincerely,

Verity Pane

Dear Carl and Megan,

In order to use the time efficiently, it is recommended to ask the Department the following questions, which will ensure a high quality consideration of the factors is provided for, which can then inform all the parties.

The scope of the FOI (both original and revised) concerned the financial expenditure of DVA on external legal services providers, as asked for it to be compiled in a summary document (from information held in DVA’s financial and record management information systems) into a set of categories (which would be evident from the information held by DVA) such that any personal information or business information or other exemption ground was avoided.

Relevant questions are:

Where does DVA allege it records and stores expenditures on external legal services providers? Why does DVA consider it’s FMIS (financial management information system) does not record these expenditures as the liability to pay arises, but at some later date?

Where does DVA allege it stores records of its engagement and scope of engagement of external legal service providers? Does DVA refute it stores these corporate records electronically in TRIM (it’s record information management system) and well as copy on the Legal Services branch G: (group) drive?

Given the DVA FMIS records the details of the invoice for external legal services provider expenses paid, which references the agency’s specific record reference for the authorising scope records, why does DVA claim the process is laborious and complicated?

The requested format for the s 17 document involves only minimal scanning of the digital records it relates to, namely the amount spent, and if it related to a veteran or not, and to totalise these amounts by generic anonymised reference (details of the purpose or scope or the parties involved or any other specific information is not sought and therefore does not need to be reviewed).

A valid estimate of processing time is to account for:
* The running of an account code report (that being the account code for external legal service providers expenditure, which DVA has and is discrete to other expenditure, for the FY in question) (less than 10 minutes);
* The checking of TRIM/G: drive for the cross referenced appointment record, to identify if it involves a veteran or not (even being generous, this would take no more than 5 minutes at worst per record);
* Totalling the amounts by the categories (less than one minute per record);
* Producing the compiled document (let’s be generous again, 30 minutes)
* Reviewing for release (maximum 30 mins, as it’s only summary statistical information)

Yours sincerely,

Verity Pane

Dear Carl and Megan,

I also forgot to mention this question:

Given Commonwealth entities are required to report external legal services provider expenditure to the Attorney General’s Department (with the lastest mandatory report due soon), why does DVA claim it it will have to start from scratch here, when it routinely prepares and reports such information.

Yours sincerely,

Verity Pane

Dear Carl and Megan,

I oppose the s 15AB application made to the OAIC by DVA, which occurred without notice being given to me (the Applicant) nor for my views to be reflected in their s 15AB application. I also note that DVA failed to state in their application that an extension of time was already voluntarily given to them.

The first ground provided that reflects it would not be appropriate to grant s 15AB extension to DVA is that DVA itself has caused unnecessary delay and inefficiency in this FOI, such that time available to it to properly process this FOI was squandered, which was caused by:

* Despite only taking two full business days to acknowledge the FOI (well in advance of the 14 day deadline), DVA did not raise its practical refusal until the 29th day - one day prior to the expiry of the statutory deadline - of the 30 day statutory processing period. This was an extremely late notification, contrary to the Guidelines, which states that agencies should notify the applicant of practical refusal notification “as soon as practicable”. Notably, in other practical refusal notifications given by DVA to other individuals here on Right to Know, such practical refusal notifications have been given much earlier (within first 5-15 days). Similarly, despite responding to the practical refusal notification on the same day it was given, voluntarily agreeing to reduce it by 2/3rds, it took another nine days for DVA to acknowledge and respond to the reduced scope (out of the 14 days extension the processing period automatically gets when practical refusal notification is given), yet no work on the FOI occurred in that 14 day period (despite the 2/3rds reduction in scope removing any alleged practical refusal reason).

* There is a history here of DVA taking untenable positions on FOIs I have made previously, such as https://www.righttoknow.org.au/request/c... DVA FOI 22031 where DVA refused access to a s 17 compiled document on the grounds it didn’t exist, only to admit it could compile the document requested on Internal Review, refusing to acknowledge a valid FOI repeatedly until IC Review lodged https://www.righttoknow.org.au/request/c... , failing to satisfy s 15(5)(a) https://www.righttoknow.org.au/request/j... , and others, that support the funding that DVA engage in practices that intentionally cause inefficiency and delay to FOI management, which it selectively applies. This supports that these DVA caused delays are not one offs, but a pattern of improper behaviour by DVA contrary to its obligations under the FOI Act.

The second ground provided that reflects it would not be appropriate to grant s 15AB extension to DVA is that DVA carries the onus of proof to demonstrate that the FOI is complex or voluminous. In this s 15AB application, DVA only alleges that the revised scope is voluminous but not complex. However, the evidence DVA provides that the revised scope is complex is unsupported claims is that:

* an estimate made by DVA is it will take 30 hours to process, but how that specific calculation was reached is not demonstrated, and is certainly not broken down, with DVA instead just including an earlier unsupported scoping estimate for the original FOI scope (that has since been reduced by 2/3rds but which DVA claims only reduces the original 60 hr estimate to 30 hrs)

* that it involves “off site” data despite (as a s 17 FOI) all information comes from digital information systems (that being DVA’s financial information system and TRIM and G: drive records management system) that require no access to off site archives or document storage or hard copy documents

* That delays were caused because an officer assisting the delegate was away for a while (agencies are required to manage their own resources effectively and efficiently to meet deadlines and the absence of an assistant for a short period is not a valid reason for inefficient processing)

* That the FOI delegate will have to work on the document itself and won’t simply be reviewing it (it is not unusual that an FOI delegate does more than simply review a document - with tasks such as redacting, editing and adding to a document part of their ordinary work)

The third ground provided that reflects it would not be appropriate to grant s 15AB extension to DVA is that DVA has not provided any timeline of steps, nor considered options as staged release, and indeed has acted inconsistent with its obligations, such that the causes of the delay are not to do with the revised scope of the FOI, but rather inefficiency and ineffective FOI management by DVA. It is implicit in the objectives of the FOI Act that agencies must ensure that appropriate resources are allocated to dealing with FOI matters. This may include assigning additional temporary resources to handle a peak in the number or complexity of requests or to overcome inadequate administrative procedures. Poor record keeping or inefficient or ineffective FOI administration would not of itself provide grounds for a s 15AB extension, especially where there is some evidence that such inefficient or ineffective FOI administration is intentional and selectively applied.

Yours sincerely,

Verity Pane

Dear Carl,

Well given the OAIC’s history of almost never rejecting any s 15AB application made, regardless of its lack of merits, I can’t say I’m surprised that the OAIC has remained true to form and continued to make support this mockery of s 15AB.

As respected FOI commentator Peter Timmis has said, it’s a bad joke.

Yours sincerely,

Verity Pane

Dear Carl,

I note, despite being required to consider the submission made about the s 15AB extension, your decision letter does not reflect any such consideration and merely uses the OAIC template text which is to say nothing more than the submission was considered (but gives no evidence of such consideration, such as evidence of weighing up the submission against the the submission of DVA) and merely repeats the template text line that by granting the s 15AB application it is anticipated DVA will provide a well reasoned and managed response (despite DVA never having done so for any FOI it has received a s 15AB extension for).

As you may be aware, a failure by a delegate to demonstrate consideration was given in a decision letter provides a reviewable ground.

Before proceeding down that path, can you give transparency to your reasoning in your decision, beyond throwaway generic template text, or does this reflect you gave no consideration at all and merely just spat out the template letter.

Yours sincerely,

Verity Pane

Dear Carl,

While I appreciate copy of your decision to DVA, which includes a copy of a few lines from the submission of DVA, it again demonstrates no reconciliation between the competing claims of the parties, and again throws away a generic “I have considered” without showing any such consideration or analysis.

In particular, despite DVA claiming (without any evidence in support, beyond the unsupported claim itself) that it needed to retrieve archived material from off-site storage, for a s 17 compilation that can only be from digital information system holdings from TRIM, G: drive and their FMIS, you appear to have satisfied yourself that is a necessity without even knowing what is required to be retrieved and from where or any supporting information at all.

It appears that an unsupported vague and opaque claim of off-site storage of something, despite being specifically challenged by my submission that the digital holdings in question are not archived in some dusty warehouse in some undisclosed location, but being recent and in digital form, remain on the premises of the Department’s servers and is still immediately accessible.

This appears that you made your decision not on the facts, but rather on formulatic unsupported claims by DVA (if they say off site then on that alone, without any detail of what is allegedly offsite, you reach a unsustainable state of satisfaction).

Of course it may be possible you received some information you have not disclosed still, but you are yet to show any, and you did state you had provided everything you based your decision on, so the conclusion is you did so unreasonably and irrationally formulatically, despite being a directly contested ground.

Also, that approach would directly contradict that FOI applicants are not to penalised by an agency’s (intentional) poor records management or (intended) failures to mantain an adequate records system, which is reflected explicitly in the Guidelines and also as the Senate report on FOI noted, “A poor information retrieval system or unwise delegation of authority [to someone who will be absent or away from the workplace] may be the cause of the burden of which it [the agency] complains... [but agencies] would realise soon enough that reliance on reasons of their own ineptitude would not be considered a legitimate invocation of the exemption”

I would remind you of your OAIC s 15AB processing policy which states:

Under s 15AB (2) the Information Commissioner may extend the initial period by 30 days, or longer, by written instrument, where the Information Commissioner considers the application justified. Key issues in considering such a request will be:

* The length of extension sought – is it less than, or greater than, 30 days 
* The justifications provided by the agency on why they consider the matter complex or voluminous 
* The nature and scope of the FOI Request 
* Views of the applicant in relation to an EOT 
* The likelihood that the agency will make a decision within the extended period of time or the matter will become a deemed refusal (s 15AC).

Agency applications should provide measurable/quantifiable explanations and justifications as to why a matter is either complex or voluminous, why the required EOT is needed, and how they will ensure a decision is made within the EOT. This information should be provided up front, with minimal need to request additional information from an agency. Examples of the types of information provided by agencies where s 15AB EOTs have been granted include:

* An explanation of activities taken in processing the FOI request as at the date of application for the EOT. This type of information is useful in assessing whether the request has been appropriately managed. This should include when the matter was received and any EOTs already granted by agreement (15AA) or by the agency/Minister (eg: 15(6) or (7)).

* The number of documents and folios identified, or an approximation where scoping work is continuing.

* An explanation of the type of documents located (eg: reports, briefings, investigation files, etc) and key exemptions identified. These issues quite often go to complexity of a matter. Such information can be based on a sample for large requests.

* An outline of activities to be undertaken within the EOT to deliver a decision on the FOI request – eg:
‐ Estimate of time to assess documents and to undertake redactions (days/weeks)
‐ Estimate of time to retrieve records (eg: where they are old and stored off site)
- Sensitivities/complexities that affect time needed
– ongoing investigations, etc.
- Whether a need to consult third parties has been identified, and how much time is estimated to consult and assess responses.

As per the OAIC policy, OAIC officers are required to review all relevant documents, identifying key elements of the matter relevant to the s 15AB application – eg justification by agency, scope of FOI request, EOT sought (above or below 30 days), urgency, any indication that the applicant would object (ask agency if they have contacted the applicant for their views about the EOT – and if not why not).

However, there is little to no evidence of this having been obtained and assessed, again it appears that the OAIC is satisfied on nothing more than simply saying the words ‘off-site’ without any details or evidence to support, and no testing of that unsupported claim took place, despite it being a contested claim.

So did you seek any information from DVA to justify the unsupported off-site claim before you made the s 15AB approval, and did you consider that applicants are not to be penalised by claimed poor records management or poor delegation of an agency before granting the s 15AB approval in the ritualised way you appear to have done (rather than on reasonable considered grounds)? Can you show any reconciliation of the disputed claims? As none of this is evident in the material provided, and infers the decision was made unreasonably, without due consideration (simply having template text that says you considered is insufficient if there is nothing to demonstrate any evaluation of that allegedly considered)

If you can’t, then I guess there is no choice but to seek external review of this decision.

Yours sincerely,

Verity Pane

Dear Carl,

What an opaque response. I note you have continued to fail to give any satisfactory basis for your decision beyond generic and vague template text, and have implicitly refused to indicate if you sought any supporting evidence from DVA given the lack of any in their s 15AB application.

I find your attitude of ‘take us to court’ instead of acting with openness, honesty and integrity appalling, and inconsistent with the Information Commissioner’s Freedom of information regulatory action policy, which states that the OAIC will be exhibit Independence, Accountability, Proportionality, Consistency, Timeliness, and Transparency in its actions.

That same directive states that the OAIC:
...will act consistently with general principles of good decision making, as explained in the Best Practice Guides published by the Administrative Review Council. In particular, the Information Commissioner will act fairly and in accordance with principles of natural justice (or procedural fairness).

The Administrative Review Council, in its relevant Best Practice Guide states:
In essence, a statement must:
• set out your decision; and
• list your findings on material facts; and
• refer to the evidence for your findings; and
• give the reasons for your decision.

The decision
You should set out the issue required to be resolved or answered by the decision, as well as the decision you have reached. Also identify yourself and your position and note whether you have legal authority to make the decision, including any delegation where appropriate.

Findings on material facts
A material fact is central to the decision.
You must state your findings on all material questions of fact. As facts may become material by implication there is scope for you or for the applicant to raise factual matters which are material. You must set out those critical matters of fact that were taken into account in making your decision. If a fact is relied on, it must be set out. If a matter is considered, then your findings of fact in relation to it must be set out.

Your scant throw-away template text line that it is considered the extra time may lead to a better decision was not a funding on material fact, but just pure template text for the template s 15AB OAIC decision letter, and you did not demonstrate any consideration at all (beyond a de facto rubber stamping of the s 15AB request).

And we can see, given how in another DVA FOI before the OAIC (a long outstanding deemed refusal), which the OAIC has also failed to do anything about, despite DVA continually failing to met the decision dates it tells the OAIC it will met, stalling IC Review, that such ‘hopes’ of the OAIC are never satisfied (because the agency knows the OAIC won’t lift a finger if they intentionally delay further)

How disappointing that the OAIC now ignores its own directives and policies, to pay nothing more than mere lip service to its regulatory role, and exposes itself as nothing more than a expensive PR spin machine, undermining all it’s supposed regulatory functions intentionally.

With all due respect, your astonishing lack of ethics does you and the OAIC no favours.

Yours sincerely,

Verity Pane

Dear Corrupt DVA Information Law,

These unlawful and pathetic delaying tactics you continuously repeat really are obvious and ridiculous.

In accordance with the DPMC’s policy on FOI timelines, agencies are supposed to adhere to the following:

As set out by the Department of Prime Minister and Cabinet, the following FOI timeline should be followed:

Day 0 - Request Received - Determine Validity
By Day 2 - Assign FOI Request to Delegate
By Day 7 - Determine Scope and undertake reasonable searches and assess if practical refusal reason exists
By Day 8 - Make decision on charging and calculate charges and prepare and issue charges notification
Days 9 - 17 - Review and Assess documents and prepare schedule, and identify exemptions
(Any third party consultation or practical refusal decision to be issued before day 17)
Day 18-20 - Draft decision
Day 21-27 - Finalise and get decision approval
Day 28-29 - Clear and sign decision
Day 30 - Issue decision and released documents to applicant
Day 44 - Publish on disclosure log, if applicable

Charges notices were required way back on 24 July 2018, eight days after the FOI was received by DVA. In particular, the issuing of a charges notice, more than two months after the FOI was received, and notably, after a s 15AB extension was granted for a decision to be provided, not to allow DVA to create further intentional delays via fraudulent charges notices, certainly highlights that the s 15AB application by DVA was an outright fraud.

I note this comes against a backdrop of multiple fraudulent delays and stalling tactics by DVA of late on FOI, with unsupported claims by DVA being the only evidence for this outrageous abuses of process.

And you are quite aware that the only realistic option of challenging these fraudulent abuses of FOI process, only give you the opportunity for stall further, potentially for years given how slow the OAIC is intentionally dragging out IC Reviews.

Indeed, it is pretty obvious that DVA and the OAIC are intentionally acting in collaboration with each other to facilitate these abuses - making it hard to determine where DVA’s arse ends and the OAIC’s shoulders start.

Still, letting you publish these abuses of process serves a purpose. Patterns of conduct by DVA are demonstrated and it gets harder to claim these are just aberrations.

Paedophiles have more morals that DVA’s Information Law employees, because you really don’t care how obvious you make your corruption. Suits me DVA, just more examples for me to cite.

Verity Pane

Dear Unnamed Officer,

As this is a summary charges decision, not a notification, and one given well after the expiry of the s 15(5)(b) deadline (the s 15AB extension granted was for the express and explicit purpose of providing a high quality FOI decision, not to be used as the opportunity to create further delay through the use of an excessive and belated charges decision - especially as I note DVA has created a number of charges decisions lately, regardless of the subject of the FOI concerned, of all around $600, which is little more than an open abuse of process by DVA by fraudulent charges decisions), I object to this abuse of process.

It is not appropriate to issue a charges decision (without notification having been given earlier, especially not in either the s 15AB application nor before the expiry of the s 15(5)(b) deadline) just before the s 15AB deadline expires, in another shameless attempt to cause further unreasonable delay.

Similarly, the unsupported estimates of processing time are excessive and made without an evidentiary basis. They are essentially unsupported back of the envelope figures, with no substantive evidence.

Furthermore, ANAO states agencies are required to have well documented and recorded monitoring of their legal services expenditure, as is required by sound financial practice, in order to meet the requirements of the Financial Management and Accountability Act 1997, as well as the OLSC’s directives. The unsupported estimates relied on by DVA do not accord with that, inferring a highly disorganised and poorly recorded history of external legal service provider use, that will take considerable time to review. This is a clear contradiction here.

Since 1 September 1999, the operating environment for Government legal services has been predominantly decentralised, with each agency free to choose how its legal needs are met, and what level of resources should be applied to meet these needs. And while the vast majority of Commonwealth agencies record minimal external legal services expenditure, DVA is high up on the top 10 list of agencies whose legal services expenditure exceeds more than the combined total external legal services expenditure of the bottom half of the APS entities.

ANAO has directed that agencies should have well organised and strongly co-ordinated legal services purchasing records, right down to the day to day level. As DVA has, via this charges assessment, asserted it does not have this, and its record keeping is poor and complicated in this area, this gives rise to public interest grounds for the release of this information.

Where an agency has not keep efficient and effective records of external legal services provider expenditure, contrary to both OLSC and ANAO and Finance Directives, and yet has expended substantial sums of public funds on external legal services providers, year on year, for which there is almost no publicly available information about the processes or details by which these external legal service providers where given work, or for what purposes, there arises general public interest grounds, to understand how these public funds were utilised.

This is especially the case if members of Parliament have recently raised and discussed the issue, especially if targeted to the agency in question, which more easily makes a public interest argument, because they may make use of a document obtained under the FOI Act in parliamentary or public debate on an issue of public interest or general interest in their electorate.

In this case, Senator Derryn Hinch and others have used Questions Without Notice in the Senate to raise community concerns on DVA’s external legal services expenditure, explicitly seeking the same sort of details sought as this FOI. Members of the community are interested in how agencies use public funds, especially when it involves expensive third party arrangements (and the Commonwealth expends millions of dollars on external legal service providers, mostly concentrated on just a few large legal entities).

Probity and transparency is therefore important to the public in this area. Similarly, how the DVA uses external legal services against veterans in a matter of public importance, with volumes of newspaper articles and reams of Hansard pages outlining poor treatment by DVA of veterans, that is overly litigious and unprofessional.

As such, this charges decision would be rescinded or, at a minimum, varied, because of the aforementioned.

It is an abuse of process and yet another sign of DVA’s corrupt conduct that it was ever put.

Yours sincerely,

Verity Pane

Dear Unnamed Officer,

No charges notice or decision was received within 30 days of the FOI being received, let alone on the 24 July when DPMC says such charges should have been notified by then.

It was pretty obvious the in the first response that the charges were contested, which you ignored, and yet again contested here.

Why do you continue to play such corrupt unethical games? It was obvious review was sought.

Yours sincerely,

Verity Pane

Attn INFORMATION.LAW,

A much needed reminder for you.

As stated by the Information Commissioner:
...it is implicit that a charge must not be used to unnecessarily delay access or discourage an applicant from exercising the right of access conferred by the FOI Act and that charges should fairly reflect the work involved in providing access to documents on request. Where a charge is justified, it would be in keeping with the objects of the FOI Act to ensure that the method of payment should also facilitate prompt access to the documents.

Yours sincerely,

Verity Pane

Attn Unnamed Officer in INFORMATION.LAW,

Ah, the corrupt bad faith conduct of DVA continues and grows I see, not only is the internal review of the charges untenable but for a review to nearly quadruple the charges levy is unique, jumping the original charges notice of $690.75 to $2,500.79, so that the new deposit amount is almost the same as the whole previous charge.

I see your corruption continues George Kormo, unabated, and you should be ashamed.

Yet again the evidence is non-existent and your bum pluck estimates rely entirely on unsupported claims which you refuse to show your evidence for.

This is yet another charges levy in a large number of charges levied issued by DVA that relate not to the work involved at all, but are entirely a reflection of the hate DVA and you have for FOI and those who made legally enforceable requests under the Act.

Congratulations, you’ve yet again fraudulently and unethically ensured an IC Review takes place, so you can delay response a year or two. It’s the number one abuse that DVA perpetually engages in against FOI requesters, although arguably it’s never caused the suicide of anyone, unlike some of DVA’s other decisions...

Here for the long term,

Ms Pane

Attn INFORMATION.LAW,

It has been drawn to my attention, that due the notice to give practical refusal was made on the last day of the s 15(5)(b) deadline, and that the consultation period only adds 14 days after the notice is given, the s 15(5)(b) period expired on 29 August 2018.

Therefore, it was not possible for the OAIC to lawfully give DVA a s 15AB extension as the extension application must be received before the FOI decision becomes a deemed refusal decision, which it did on the 29 August 2018.

The OAIC was explicit that DVA only applied for a s 15AB extension on 30 August 2018, and therefore the application was out of time, as the FOI was a deemed refusal as no extension was provided before the amended s 15(5)(b) deadline expired.

As a result, given the FOI became a deemed refusal on 29 August 2018, the charges notices are ultra vires and unable to be enforced (even if an extension had of been granted). Given DVA would have been aware the decision went deemed based on the deadline calculations provided to you by your LEX system, you’ve been deliberately engaging in bad faith fraud by making these ultra vires decisions.

Naughty, naughty DVA,

Ms Pane