FOI Application (s 17) for Travel, Gift and Official Entertainment Expenditure at Commonwealth Expense of ADHA Key Management Personnel

Dear Australian Digital Health Agency [email address] ,

I apply under FOI, specifically s 17, for a summary compilation from the Australian Digital Health Agency’s (hereafter referred to as ADHA) financial information system records, of all official travel, official gift and official entertainment expenditure for both FY16/17 and FY17/18 (identified by FY), for all key management personnel (as defined by AASB 124) of ADHA, which as per previous election by ADHA, includes all ADHA board members, the CEO, and all EGMs (including ADHA Chief Medical Advisor).

The ADHA is a statutory agency under the Public Service Act 1999 and is a corporate Commonwealth entity in the General Government Sector under the Health portfolio. As such, it is required to be accountable and transparent in its use of Commonwealth resources that are derived from the taxpayer.

As at 30 June 2017, the Agency employed 247 staff, but only 15 persons are considered ‘key management personnel’.

For the summary compilation, the CEO position is to have its expenditure information listed but the ADHA may report all other key management personnel expenditure as a group.

!Official travel is to be broken down as follows:

* Flights
Tier 1 flight expenditure - All First Class flight expenditure
Tier 2 flight expenditure - All Business Class flight expenditure
Tier 3 flight expenditure - All Economy Class flight expenditure

Where mixed classes of flight exist on the same expenditure, it is to be reported at the highest class of flight booking that occurred.

Any reunion travel or spouse accompanying travel at Commonwealth expense is to be separately identified, identifying the position that was granted that travel, and the tier it was booked at.

* Accomodation

Accomodation expenditure can be listed as a total, with the number of total nights of paid accomodation provided that it covered.

Any ‘unavoidable’ higher cost accomodation claims, that exceeded the specified upper limit of the Renumeration Authority tier applicable or limits set by the ADHA travel entitlements policy, is to be listed individually, identified by the position that claimed it.

Any reunion or seperate spouse accompanying travel at Commonwealth expense is to be separately identified, identifying the position that was granted that travel, and the tier it was booked at.

* Car Hire/Taxi/Booked Car With Driver(BCWD)/Own Means

Car Hire/Taxi/Booked Car With Driver/Own Means expenditure can be listed as a total, split into the various categories. Car Hire and Taxi are self explanatory. BCWD is all limousine and chauffeur driven car services that aren’t hailable taxis (BCWD requires booking, and cannot be hailed from the street). Own means is where an officer drives their own private vehicle and receives a payment at Commonwealth expense for this.

* Meals/Meals Allowance

All F&B expenditure and/or allowances received, which can be listed as a total along with the number of meals it covered.

Any ‘additional meal’ claims, as defined by the Renumeration Tribunal, are to be listed separately.

Any meal claim that exceeded the specified upper limit of the Renumeration Authority tier applicable or limits set by the ADHA travel entitlements policy, is to be listed individually, identified by the position that claimed it.

*Incidentals Allowance

All incidentals allowances paid and/or reimbursed may be reported as a total

!Official gifts

All official gifts expenditure is to be listed individually, with the position that gifted the gift identified

!Official entertainment

All official entertainment expenditure is to be listed individually, with the number of people who were entertained at Commonwealth expense identified for each expenditure

It is important that taxpayers can rely on Commonwealth officials to use Commonwealth resources prudently and ethically, especially given the sensitivity over travel expenditure, official gifts, and official entertainment.

It is also noted that in previous roles, current members of ADHA key management personnel were criticised for being profligate with government resources, and therefore transparency here will address these lessons were learnt and have not been repeated.

As every Commonwealth controlled entity is required to maintain well recorded and reliably details financial records, especially for travel expenditure, official hospitality and official gifts, the time required to compile the required information from the ADHA’s financial information management systems is minimal, especially given it is only for ADHA’s key management personnel.

I do not consent for this FOI to be referred to another agency, and I require the response to be provided here via RtK, in either Excel spreadsheet or PDF format.

Yours faithfully,

Verity Pane

Dear Australian Digital Health Agency,

As your agency appears to have some difficulty with understanding it’s obligations under the Freedom of Information Act, I thought a friendly reminder that your agency has a statutory obligation under s 15(5)(a) to acknowledge this FOI no later than today.

An agency has a statutory obligation to acknowledge that an FOI request has been received as soon as practicable, and no later than 14 days after receiving a request (s 15(5)(a)).

Yours faithfully,

Verity Pane

Dear Australian Digital Health Agency,

A reminder that you are in breach of s 15(5)(a), having failed to acknowledge this FOI within 14 day’s of receipt.

I have confirmed that ADHA did receive these emails but, for reasons known only to ADHA, appears to be stonewalling instead.

I will notify the OAIC under s 70, of the breach.

Yours faithfully,

Verity Pane

Dear Australian Digital Health Agency,

This FOI, having been received by the Australian Digital Health Agency (ADHA) on 13 August 2018, fell due for decision under s 15(5)(b) on Wednesday 12 September 2018, which has not been made and is now a deemed refusal response.

DEEMED REFUSAL

The obligation on an agency or minister to notify an applicant that a request has been received, and to make and notify a decision on the request within the statutory timeframe, commences upon receipt of a request that meets the formal requirements in ss 15(2),(2A).

Your agency has failed to do so.

An agency or minister must, as soon as practicable, and within 14 days of receiving a request, take all reasonable steps to enable the applicant to be notified that the request has been received (s 15(5)(a)). This requirement will be met by sending a notice of receipt to the contact address provided by the applicant. The 14-day timeframe commences on the day after the request is received by or on behalf of an agency or minister’s office.

That FOI acknowledgement fell due on 29 August 2018, and despite a reminder on the day it was due, and follow up reminders after it wasn’t provided, the ADHA continued to breach s 15(5)(a) of the FOI Act.

Similarly, an agency or minister must, as soon as practicable, and no later than 30 days after receiving a request, take all reasonable steps to enable the applicant to be notified of a decision on the request (s 15(5)(b)). Section 15(5)(b) provides that the 30-day processing period commences on the day after the day the agency or minister is taken to have received a request that meets the formal requirements of s s15(2), (2A).

In the absence of any valid notification of a statutory ground that extended that processing period, thr statutory date for decision therefore expired on Wednesday 12 September 2018, and the ADHA breached s 15(5)(b).

A ‘deemed refusal’ occurs if the time for making a decision on a request for access to a document has expired and an applicant has not been given a notice of decision. If this occurs, the principal officer of the agency or the minister is taken to have personally made a decision refusing to give access to the document on the last day of the ‘initial decision’ period (s 15AC). A notice of the deemed decision is taken to have been given on the last day of the decision period.

The consequence of a deemed refusal is that an applicant may apply for IC review (s 54L(2)(a)). An applicant or third party can also apply for IC review of a deemed affirmation of a decision on internal review (ss 54L(2)(b), 54M(2)(b)). In addition, once the time has expired and there is a deemed decision, the agency or minister cannot impose a charge for access.

Where an access refusal decision is deemed to have been made before a substantive decision is made, the agency or minister continues to have an obligation to provide a statement of reasons on the FOI request. This obligation to provide a statement of reasons on the FOI request continues until any IC review of the deemed decision is finalised. The competing view — that a decision maker is functus officio if a deemed decision arises — would have the consequence that an applicant’s right of access under the FOI Act would be impeded through delay on an agency’s part and could only be revived by an application for IC review. This result would be contrary to the objectives and requirements of the FOI Act.

Yours faithfully,

Verity Pane

Dear Australian Digital Health Agency, [cc OAIC]

Please be advised of the following IC Review made this afternoon, following your ongoing failure to address your multiple breaches of your statutory obligations under the Freedom of Information Act 1982.

Yours faithfully,

Verity Pane

————

From: Verity Pane
Sent: Thursday, 13 September 2018 5:40 PM
To: [email address]
Subject: Application for IC review under s 54L(2)(a) - Australian Digital Health Agency

Dear OAIC,

Strangely, despite referring the Australian Digital Health Agency (ADHA) to the OAIC earlier under s 70, for breaches of s 15(5)(a), the OAIC has failed to encourage the ADHA to meet its statutory obligations under the FOI Act, and now we have a new breach by the ADHA under s 15(5)(b), which has caused a Deemed Refusal to occur on the following FOI on Right to Know https://www.righttoknow.org.au/request/f...

As the OAIC has demonstrated it can respond to s 15AB applications via Right to Know, in order to keep everything in the one place, I seek the OAIC to do likewise for this IC Review for s 15(5)(b) breach and direct all future correspondence on this matter via the above supplied Right to Know page.

I would also direct the OAIC to comply with its own Directive issued under section 55(2)(e)(i) of the Freedom of Information Act 1982, entitled ‘Direction as to certain procedures to be followed in IC reviews’, which in the other IC Review I have with you, you have failed to adhere to.
https://www.oaic.gov.au/freedom-of-infor...

Regards

Verity Pane

Dear Australian Digital Health Agency [cc OAIC]

Be advised of the following communication received from the OAIC and my response.

The outrageous and explicit flaunting of the legally enforceable right to access information under the Freedom of Information Act 1982, and your agency’s intentional breaches of s 15(5)(a) and s 15(5)(b) of the Act, are with respect, signs of culture of an unethical and corrupt culture at the ADHA, particularly given the obligations of agency staff to be accountable and transparent over their use of Commonwealth resources.

The fact that the ADHA is willing to go to significant lengths to cover up its use of Commonwealth resources by its senior executives, would give credence that the ADHA is concerned that the revelations of its travel and other ancillary benefits its senior executives receive, would reflect poorly on the ADHA and may even lead to further unwanted investigation.

This is especially the case when senior executives of ADHA in former roles were reported on in the media as abusing travel entitlements in the past.

It is a well known principle, in legal proceedings for example, when another party won’t release something, the doctrine holds that this is because it won’t help them if they do. This seems to be the case here.

Highlights the need for a Federal ICAC.

Yours faithfully,

Verity Pane

————

From: Verity Pane
Date: 19 September 2018 at 6:26:55 pm AEST
To: FOIDR <[email address]>
Subject: Re: Application for IC review under s 54L(2)(a) - Australian Digital Health Agency [SEC=UNCLASSIFIED]

Dear Megan,

Kindly direct all future replies for MR18/00692 to email address [email address]

I would draw your attention to the Information Commissioner’s own Direction as to certain procedures to be followed in IC reviews which the OAIC has published here https://www.oaic.gov.au/freedom-of-infor...

This direction, given under section 55(2)(e)(i) of the Freedom of Information Act 1982, is unambiguous about the required steps to be followed by the OAIC.

Para 4.1 makes explicit that “[w]here an application for IC review is made on an FOI request that is deemed to have been refused under ss 15AC(3), 51DA(2) or 54D(2) of the FOI Act, the Information Commissioner will undertake preliminary inquiries pursuant to s 54V of the FOI Act. In undertaking preliminary inquiries, the Information Commissioner will require the agency or minister to provide an explanation regarding the status of the FOI request and, if the request is not finalised, an estimated date for a decision on the request.”

Similarly para 4.2 explicitly states, that once the OAIC has commenced preliminary enquiries, which the OAIC did no later than 20 August 2018 (given that is when you saw fit to advise me that preliminary enquiries where underway), that “Agencies and ministers will have one week to respond to the Information Commissioner’s preliminary inquiries“.

It is explicit in para 4.3 of that Directive that “If no response is received in that time or it appears that there may be further unreasonable delay in the processing of the FOI request, the Information Commissioner will commence IC review and require the agency or minister to provide a statement of reasons pursuant to s 55E of the FOI Act. The agency or minister will be required to provide the statement of reasons within the timeframe specified in the notice.[See FOI Guidelines at [10.61] – [10.62]]”

I would remind the OAIC that from the time it first contacted the ADHA, the ADHA only has one week within which to respond and provide an estimated date a statement of reasons will be provided to the FOI Applicant, as per the Information Commissioner’s Directive. I expect to be advised of that estimated date, when it is provided to the OAIC by the ADHA.

Given recent breaches of this Directive by the OAIC, I give notice I will not tolerate further breaches.

I don’t think it is unreasonable to ask the OAIC to adhere to their own directives, and I am disappointed that the OAIC seems to openly flaunt their own rules of late.

Regards

Ms Pane

From: FOIDR <[email address]>
Sent: Wednesday, September 19, 2018 4:00 pm
To: Verity Pane
Subject: RE: Application for IC review under s 54L(2)(a) - Australian Digital Health Agency [SEC=UNCLASSIFIED]

Our reference: MR18/00692

Ms Verity Pane
Sent by email

Your IC review application about an FOI decision by the Australian Digital Health Agency

Dear Ms Pane

Thank you for your correspondence seeking to lodge an IC review application with the Office of the Australian Information Commissioner (the OAIC) about the Australian Digital Health Agency (the ADHA).

The OAIC has initiated preliminary inquiries with the ADHA about the deemed refusal of your request, we will contact you once the ADHA responds to advise the next steps. I note that the OAIC is also conducting inquries in relation to your FOI complaint.

Your IC review application will be shared with the ADHA as part of the IC review process unless you have specifically requested otherwise.

If your circumstances change, or your request has been resolved directly with the ADHA, please advise us by email as soon as practicable.

Information about the way we handle your personal information is available in our privacy policy
Should you wish to follow up on this matter, please contact the OAIC enquiries line on 1300 363 992 or email [email address] and quote the reference number at the top of this email.

Kind regards

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