Dear Department of Defence,

I seek under FOI any documents held by the Information Management and Access Branch of the Governance and Reform Division, relating to guidance, procedure or policy for the management and administration of FOI applications made by members of the public.

I also seek any documents relating to guidance, procedure or policy on “difficult” or “problematic” applicants that relate to Defence’s management and administration of FOI applications.

I would also be interested in any documents relating to guidance, procedure or policy with respect to the training of delegates, with respect to Defence’s management and administration of FOI applications.

Yours faithfully,

Verity Pane

Dear FOI,

So for a stand down period of 4 business days (three being annual holidays), which not all Defence members take contrary to your claim (as only a couple of those days are leave, the rest must be taken from annual holiday accrual or given as short or other leave), you seek a whole month extension? Excessive and over the top just a bit don’t you think.

I won’t give you a month’s extension for what would otherwise be seven business days in a normal period. As per the Guidelines, it is the agency’s job to manage its resources, and I note that given prior abuses by Defence on previous FOIs made by me for spurious and fraudulent “consultations” and other claimed delays that where wholly contrary to the aims and objectives of the FOI Act, you’ve burnt your bridges already here.

Agencies are required to manage public holidays at every other time of the year, and this is no different.

Also, you’ve miscalculated the response date (making it due on a Sunday). The statutory response time runs out on Monday 22 January 2018, not the 21st.

However, as a proportionate response, I will allow Defence to have an extension until COB Friday 26 January 2018, given that provides you with an additional 4 business days to complete the response, which is the same amount of business days (that are not public holidays) in the Defence stand down period (which again, is a period of reduced activity, not a closure of the agency).

Yours sincerely,

Verity Pane

Dear FOI,

I would also add, that where extension of time requests are made, without any analysis or provision of estimated processing requirements being provided, such requests are made without evidence or any rationality. The onus is on the agency to show why delay would be reasonable against the work required, for the period in question.

Given the scope of my FOI application only applies to one discreet area of Defence (that being your own) for documents that would be at hand, there is nothing complex or voluminous about this FOI scope and it would be hard pressed to take 14 days, let alone 30, to process.

Yours sincerely,

Verity Pane

Dear FOI,

I am very intrigued by this claim that checking what manuals or policy documents that staff within the Freedom of Information Directorate (FID) use, that relate to the scope of the FOI application, which would be used on a day to day basis by FID staff, would require in excess of 150 hours to locate.

You make mention you have conducted a sampling study, but beyond claiming it supports this figure, fail to give any detail to support this fanciful claim.

Simply put, having given notice of a claim of practical refusal, just before the extended statutory response date for this FOI elapses, appears to be little more than a deliberate bad faith mechanism to obtain the delay the Department originally sought for another month in extension to be given (despite that the Christmas stand down period doesn’t exceed a week, and is by no means universal, with some Defence staff continuing to work across this period).

To assist in this “consultation”, can you please list all Defence manuals and policies FID staff use in the processing of FOI applications and the number of pages they contain, as well as a brief description of how they relate to the scope of the FOI application made, so I can “limit” the scope of this FOI.

My understanding that there are only a couple of such manuals and policies FID staff use in the processing of FOI applications, certainly an order of magnitude less than would be required for it to take more than 150 hours to locate and identity them.

Can I also have copy of your scoping study calculations, so that I might better understand your “burden”.

I obviously need some information, beyond vague statements, if I am to assist the FID staff to “reduce” its “burden”.

Kind Regards

Verity

Dear FOI,

Yet again I receive a response that is lacking substance and details, beyond vague and unsubstantiated claims, despite explicitly seeking details to justify such misleading and untenable claims.

The scope of the FOI was “documents held by the Information Management and Access Branch of the Governance and Reform Division, relating to guidance, procedure or policy for the management and administration of FOI applications made by members of the public”.

Draft documents are deliberative documents and are therefore out of scope.

My initial response to your fraudulent use and abuse of practical refusal conferral was to confirm that the type of documents sought were formal policy and procedural manuals - which excludes document templates or copies of the internet or intranet site etc that you misleadingly refer to.

Additionally it was confirmed that documents sought were ones that were being used today, not ones that may be historical (but out of date) or ones that may be proposed to be used in the future, but that which the FOI Directorate staff are using currently.

Those documents may include instructions on how FOI Directorate staff may use any FOI tracking system used, but it would be untenable to claim that scope would extend to document templates, informal notes, draft documents, or any of the other things you have claimed.

If a document does not instruct FOI Directorate staff, then it is clearly outside scope.

I asked you to provide your workings for your “estimate”, which you have refused to provide, denying any verification of this wild claim, and therefore it is clear there is no evidence for this claim.

I have asked to you provide a list of material you claim is in scope, which you have refused to provide, denying any verification of this wild claim of thousands of documents, and therefore it is clear there is no evidence for this claim.

As you are aware, the onus of proof is on the agency for practical refusal, yet no evidence has been provided, nor has Defence made any attempt to confer in a timely manner, issuing practical refusal notification at the end of the statutory period for a decision, rather than within 14 days of it being made, as is the normal procedure.

Defence continues to abuse the aims, objects and requirements of the FOI Act, in bad faith, and it is disappointing this is a systemic issue with Defence, that appears deeply entrenched.

Yours sincerely,

Verity

Dear Defence’s Freedom from Information Division

I see after much prolonged consideration, you have proposed the same scope as that put to you originally, which is of course agreed to.

Isn’t it an amazing coincidence that the delays caused by Defence are ensuring that you will make no decision on this FOI until well after the delay you originally sought (and to which agreement was not given, given for a couple of days of leave, you wanted a whole extra month), until after the date - 21 Feb 18 - that was put forward by Defence in that s 15AA demand.

An independent outside observer may conclude that that this practical refusal notification and pseudo-consultation was nothing more than an intentional bad faith sham to effect that which Defence could not coerce otherwise.

Funny that, isn’t it. Well I’m sure you’ll keep up the job of subverting and undermining the FOI Act aims and objects and legislation, in breach of your statutory obligations, regardless.

It’s not without risk though is it, people do tend to note such things, and given the unrepentant and long held cancerous culture of your area, the accumulation of such bad faith makes it harder for such patterns of conduct to be refuted in more formal review venues.

But I must admit it is all very helpful to my thesis, in giving concrete examples of how the FOI Act is becoming meaningless in the face of escalating abuses of office by the public sector executive, and what steps we need to take to rebalance the system.

Yours sincerely,

Verity

Dear Matthew Ashauer and Melissa Davidson,

I received Matthew Ashauer‘s unsigned preliminary notice of charges today, advising that Melissa Davidson had declared that fees in excess of $300 were required before Defence would conduct any search for documents.

In that preliminary notice, the estimate breakdown listed the hours Defence claims are required, but provides no evidence to support those calculations nor even the number of documents that are considered in scope, even though Defence has previously claimed it carried out a scoping study (which again, Defence has ignored previous requests for its workings or any details of the alleged scoping study carried out to be provided, beyond ambit unsupported claim of over 300 hours being made).

Estimates need to be based on reasonable assessments, and must be supported by some evidence, not wild bum plucks which are grossly exaggerated in bad faith.

Throughout this process, Defence has repeatedly caused bad faith delay, and provided false and misleading claims, which it refuses to substantiate with any evidence.

I therefore seek this preliminary assessment to be reconsidered by another officer not involved in the original preliminary assessment decision, and seek evidence to be provided as to how Defence justifies the grossly disproportionate estimate given, given the scope of the FOI cannot apply to more than a couple of documents (especially given the exclusions already given as to what is not in scope).

Defence would be well aware of the documents in scope, and their contents, given these are day to day reference material used by this FOI section.

But I do appreciate you digging an even deeper hole for yourself, given that your area’s conduct in these decision and previous ones, continues to build the evidence of systemic procedural abuse by Defence of its FOI statutory obligations, which eventually will be the petard onto which you impale yourself.

Yours sincerely,

Verity

Dear FOI,

As previously stated, I seek supporting evidence to justify the otherwise unsupported charges calculation, for which Defence has refused to provide any supporting evidence for, when the estimates appear grossly disproportionate and in an order of magnitude greater than the scope would support.

It is the estimates in the preliminary estimate that I seek reviewed first and foremost, given they lack any evidentiary basis and any rationality, and are nothing more than a bad faith tactic to frustrate the FOI made, contrary to the statutory obligations of the FOI Act.

In other words, repetition of the systemic culture of the Defence FOI section that seeks to subvert and undermine its statutory obligations, in deliberate bad faith, specified in the FOI Act.

As you know, you can only continue this pattern of bad faith for so long, before you are required to demonstrate your evidentiary basis, which we both know is fraudulent. Happy to give you enough rope here, for you to make my evidentiary burden in proceedings to come.

Yours sincerely,

Verity

Dear Assistant Director Cos Cameron,

Your response, which again fails to provide any substantive evidence to support the outrageous and ridiculous estimates which your area persists with in bad faith, to delay access, is yet further evidence of the systemic culture within Defence to undermine and frustrate the objects and aims Freedom of Information Act.

At paragraph 14 of that response you state:

In your email you stated: ”Estimates need to be based on reasonable assessments, and must be supported by evidence”, further you state: “Defence would be well aware of the documents in scope, and their contents, given these are day to day reference material used by this FOI section”.

You go on in paragraph 15 to state:

Our office conducted preliminary searches for documents matching your revised scope which amounted to over 500 pages. The FOI Directorate use many various guidelines, advice and policy documents in processing FOI requests. There is no single guide Defence FOI practitioners use to process requests and as such your scope has captured all reference material currently in use. These documents will need to be reviewed closely prior to release and some documents may require redaction. I have taken this into account when considering your arguments, and in the first instance have assured myself that the estimated charge of $319.60 is reasonable in terms of the amount of work required to process the request. I am an experienced FOI practitioner and I consider the calculations reflect the time it would take to process the request.

So instead of providing any details of the alleged calculation that demonstrates the reasonableness of such an estimate, you instead opaquely claim you are satisfied and that’s the end of the matter.

While we can expect no good faith from Defence’s Freedom of Information Directorate, whose ethics are non-existant, and who have no problems with acting fraudulently and in intentional bad faith, given that is your systemic cancerous culture, all it will do is help me demonstrate that these are systemic issues, and that remediation is unavoidable, so thank you for that.

Yes, I do challenge your charges decision and seek review of your ridiculous rubber stamp of the original estimate decision.

Yours sincerely,

Verity Pane

Dear FOI,

As stated in my response of 8 March 2017, which is the date review was sought (and when the statutory response deadline commenced), review has been sought of the charges.

Do stop playing games, with the bad faith intentional objective of causing further delay.

Yours sincerely,

Verity Pane

Dear FOIReview,

In particular, I would like a list of all the alleged multiple materials that it was claimed the FOI team use as reference material, so that I can assess whether I can exclude material from the scope that is of little or no relevance.

Yours sincerely,

Verity Pane

Dear Jarrod Howard,

I can’t say thank for your decision, the reasons for which given were ridiculously opaque.

“Upon internal review, I sought a sample of the documents matching the scope of the FOI request. In my view, the basis for the preliminary assessment of charges provided to the applicant reflects the work involved in providing access to documents. The applicant has not specially challenged the actual time involved in processing the FOI request, therefore I do consider the preliminary assessment is more than fair and reasonable”

This is a laughable response given the entire basis of the internal review is that no basis beyond mere unsupported claim, was provided by the original delegate nor the internal review delegate, that supported the figures quoted. Merely stating a figure is insufficient- the agency must be able to show there was a reasonable basis for that figure - which Defence have effectively refused to provide here twice.

The Department has previously been criticised by the Information Commissioner for exaggerating and artificially inflating previous estimates of time for FOI search, retrevial and assessment the Department has asserted in bad faith, with no supporting evidence to justify. The most recent was in 'MK' and Department of Defence (Freedom of information) [2017] AICmr 89 (15 September 2017), where the Commissioner stated:

“There is nothing before me that justifies allowing 8 hours to establish how many employees might hold documents within scope of the request, or 1276 hours to find contact details and make contact with the those persons. Likewise, the Department has not explained its basis for allowing 8 hours to identify individuals in order to conduct CIOG H Drive searches and it is not clear what these elements involve. The Department’s estimate of 2 minutes per page to assess and edit a page falls within the timeframe I have previously found to be acceptable. However, the Department has not provided any evidence that documents within scope would be found and it is unclear whether the Department would find any documents given the age of the documents sought.”

This decision similarly fails to provide any material to support the claims made, beyond mere assertion, and deserves similar criticism.

It is notable that paragraph 16 of Jarod Howard’s decision makes similar claims to those criticised by the Information Commissioner, in that claiming wide and extensive consultations are required over what are policy documents, not personal records, is a colourable abuse.

16. The estimated time to be taken to administer the applicant’s request covers over 500 pages of documents. The work involved in administering the applicant’s FOI request relates to searching for documents while liaising with many areas in Defence to ensure all documents falling within the scope have been identified. Decision making time relates to examining the pages for decision making, removing information from pages, consulting third parties, drafting and finalizing a statement of reasons and completing a schedule in accordance with the decision. Therefore, I consider the applicant should pay the original estimate as this reflects a contribution to the actual cost.

Yet again, Defence’s hostile and bad faith culture towards FOI continues to set new lows in FOI administration.

Yours sincerely,

Verity Pane