Dear Department of Veterans' Affairs,

I request under FOI any document (not including emails or other informal documents relating to just general administrative activity) held by the Department about the formal services agreement or other establishing formal documents that relate to the purpose and/or scope and/or outcomes to be delivered by the ‘Veteran Mates’, excluding all marketing material and general advice/information material distributed to pharmacists, GP or veterans.

Any document not involving sign-off/approval below SES level (or equivalent) is excluded from scope (looking at the primary documents only, not ancillary material).

Any financial expenditures within documents in scope, if sensitive, may be redacted with consent.

Any proprietary IP, within documents in scope, if sensitive, may be redacted with consent.

Any individual names below SES level (or equivalent), within documents in scope, if sensitive, may be redacted with consent.

Any email addresses or other contact information equivalent), within documents in scope, if sensitive, may be redacted with consent.

Any ethics approval and any privacy impact assessment about or on Veterans Mates program is also in scope.

Yours faithfully,

Julie

Dear Department of Veterans' Affairs,

Correction to scope - REMOVE

Any document not involving sign-off/approval below SES level (or equivalent) is excluded from scope (looking at the primary documents only, not ancillary material).

REPLACE WITH

Any document not involving sign-off/approval *at* SES level (or equivalent) is excluded from scope (looking at the primary documents only, not ancillary material).

Yours faithfully,

Julie

Dear Department of Veterans' Affairs,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department of Veterans' Affairs's handling of my FOI request 'FOI - Veteran Mates Program - Services Agreement / Scope / Deliverables Documents'.

The FOI Act does not prescribe any procedure or criteria for the internal review decision but an agency should be guided by the principles put forward by the Administrative Review Council in a Best Practice Guide on internal review, Internal Review of Agency Decision Making, Report No 44 (2000), Chapter 8.

And given reference to a third party, to avoid all doubt, the FOI Act does not authorise an agency to extend the time for deciding an internal review in order to undertake third party consultation.

Similarly an agency must provide written notice of an internal review decision to the internal review applicant (s 54C(4)), with the notice of decision required to comply with s 26. The notice should state the findings and reasons underlying the internal review decision, and not merely refer to or restate the decision of the original FOI decision maker.

The guiding principles of FOI internal review are as follows:

1) The role of the internal review officer is to bring a fresh, independent and impartial mind to the review. To the extent possible, the officer should not have been involved in or consulted in the making of the decision under review (it is preferable that the review officer is senior to the officer who made the decision under review).

2) Internal review is a merit review process and the internal review officer should decide all issues raised by an applicant’s FOI request, and exercise all the powers that were available to the original decision maker. For example, the review officer can decide (contrary to the decision reached by the original decision maker) that a document is not an exempt document under the FOI Act, that an exempt document should be provided to the applicant in accordance with s 3A, that a practical refusal reason under ss 24 and 24AA does not exist, or that an FOI charge should be reduced or waived.

3) The internal review officer may rely on record searches or third party consultation undertaken by the original decision maker, or may cause the same work to be undertaken again. For example, the review officer may rely upon an earlier agency search that located all requested documents the agency held, and may accept the record of consultation the agency undertook with a State, a foreign organisation, a business entity or a person. On the other hand, if there is a doubt as to the adequacy of those earlier record searches or consultation, the review officer may repeat those tasks, partially or in full, to reach a correct and preferable decision on the FOI request.

4) All the material available to the original decision maker should be available to the internal review officer. In reviewing an exemption claim, the internal review officer should examine each document claimed to be exempt.

5) The internal review officer must consider all issues raised by the person applying for internal review. The review officer may contact that person to seek further information or to discuss the issues raised by the request, including the option of redefining or narrowing the scope of the request.

6) The internal review officer may consult other agency staff when undertaking the review, including the original FOI decision maker. However, it is important that the review officer brings an independent mind to the task and does not act at the direction or behest of any other officer.

7) The internal review officer may consider additional material or submissions not considered by the original FOI decision maker. In particular, the review officer may decide that a change in circumstances occurring since the earlier decision has the result, for example, that disclosure would not be contrary to the public interest, or that a charge should be waived on public interest grounds.

I accept, given the identification of the three identified documents, which are within the scope of the FOI, that there may possibly be some commercial-in-confidence material within, but that such material could not reasonably be said to include every page and every paragraph of the aforementioned documents, and the claim that the confidential nature of a document would be jeopardised by selective release of any part of a document creates a high onus of proof to be met.

The mere fact that an agency has expressed concern that any disclosure, even selective, would cause a breach of confidence, is not enough to satisfy the exemption. The mere disclosure of ordinary business communications between parties revealing no more than the mere facts of consultation or collaboration will not, of itself, destroy trust and confidence between those parties.

Whether the information is, in fact, confidential in character and whether it was communicated in circumstances importing an obligation of confidence are relevant considerations, but the decision merely offers opinions on this, unsupported by factual evidence.

Purely factual material, which includes material such as statistical data, surveys and factual studies, for example, will rarely satisfy the test for confidentiality.

And notably, some information cannot be reasonably confidential given it is required to be mandatorily reported under existing disclosure schemes (i.e. Commonwealth procurement disclosures).

Section 45(1) provides that a document is an exempt document if its disclosure would found an action by a person (other than an agency or the Commonwealth) for breach of confidence. In other words, the exemption is available where the person who provided the confidential information would be able to bring an action under the general law for breach of confidence to prevent disclosure, or to seek compensation for loss or damage arising from disclosure.

It should not be presumed that the other party, if they have not been consulted, and could readily have been so, would object to disclosure, which is necessary if a confidentiality clause provides for only selective enforcement.

I would also draw your attention to Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434, in that the alleged confidential information must be identified specifically. It is not sufficient for the information to be identified in global terms, such as claiming it over the whole document/s, without specific consideration of each part of the document, as to whether such a commitment would be reasonable.

This is especially the case given the onus of the FOI to redact/exempt only that which is reasonably required, and to partially release wherever possible if an exemption may arise to a document being released in whole.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/f...

Yours faithfully,

Julie

Dear Department of Veterans' Affairs,

I would like to add the following to my Internal Review request:

Having checked AusTender, with respect to the deeds of agreement and contractual variations, all of the documents are reported as having no contract confidentiality clauses or output confidentiality clauses as are required to be mandatorily reported under Commonwealth procurement guidelines.

CN ID..............Supplier.......Desc........................Confidentiality...Confidentiality..End Date...Value ($m)
..................................................................................Contract.............;Outputs.
CN3322135’’’’UNI OF SA’’’Veterans' MATES’’’’’’’’’’’’’No’’’’’’’’’’’’’’’’’’’’’’’No’’’’’’’’’’’’’30-Jun-18’’’14mil
CN3497679’’’’UNI OF SA’’’Veterans' MATES’’’’’’’’’’’’No’’’’’’’’’’’’’’’’’’’’’’’No’’’’’’’’’’’’’30-Jun-21’’’’11mil

These would be required to sustain a claim that absolutely no part of the contract signed (noting that are all high value multi-million dollar contracts, and therefore would reasonably be subject to some external scrutiny) could be disclosed on confidentiality grounds.

While contents that relate to trade secrets, other commercially sensitive proprietary information; and personal information would be reasonable to be redacted, it would be unreasonable given no restrictive confidentiality provisions were reported to AusTender (as is mandatorily required) to claim all of the contents of these documents are prohibited from any form of release.

Yours sincerely,

Julie

Dear Department of Veterans‘ Affairs

As you would be aware, the listing of confidentiality provisions in AusTender is part of a compliance regime to comply with the Senate Procedural Order of Continuing Effect: Entity Contracts which was introduced in 2001 to improve public access to information about government contracting. The main principle on which the Senate Order was based, as stated by ANAO, is that parliamentary and public access to government contract information should not be prevented, or otherwise restricted, through the use of confidentiality provisions, unless there is sound reason to do so. Successive governments have agreed to comply with the Senate Order and have required entities to put in place suitable procedures to support Ministers to comply with it.

Under the Senate Order, portfolio Ministers must table letters of advice for entities they administer in the Senate, confirm that these entities have published, on their websites, lists containing the following, where a confidentiality clause barring disclosures is part of the contract is claimed:
* the contractor, the amount of the consideration, the subject matter of each such contract, the commencement date of the contract, the duration of the contract, the relevant reporting period and the twelve-month period relating to the contract listings; and
* whether each such contract contains provisions requiring the parties to maintain confidentiality of any of its provisions, or whether there are any other requirements of confidentiality, and a statement of the reasons for the confidentiality.

I have searched your website, and have not found and such disclosure for the Veteran MATES contracts, nor can I find any such document about the Veteran MATES contracts tendered in Parliament by your Portfolio Minister, stating that these contracts had confidentiality provisions which prohibited their release.

This accords the records of AusTender which similarly report no such confidentiality restrictions.

I also note that Finance’s whole-of-government guidance Buying for the Australian Government, Confidentiality Throughout the Procurement Cycle (the Guidance)—contains the Confidentiality Test, which is designed to assist entities to determine the appropriate inclusion of confidentiality provisions in contracts. The Test consists of four criteria, all of which must be met for a supplier’s commercial information to be considered confidential. These are:
* the information to be protected must be specifically identified (which hasn’t been identified in the statement of reasons, but rather a global claim has been made)
* the information must be commercially ‘sensitive’ (again, no specifics in the statement of reasons)
* disclosure would cause unreasonable detriment to the owner of the information or another party (vague claims not substantiated by specific reference); and
* the information was provided under an understanding that it would remain confidential (contradicted as the notifications required to be made for such confidentiality provisions, that require notice to be given on your agency website, and for notification to be tabled in Parliament, and to be flagged to AusTender don’t exist).

Can you explain this discrepancy as to the claimed refusal ground?

Yours sincerely,

Julie

Dear Position Number 62209913, Acting Director, Information Law Section,

I acknowledge your internal review decision note of 18 October 2018, in which you state:

“I have made a decision to vary the original decision made by Position Number 62210022 on 17 September 2018. I have decided to release each of the documents identified in the original decision in part. In accordance with Section 22(2), I have decided to provide access to an edited copy, modified by deletions, of each of these documents. I have also decided to release other Request for Tender documentation in full.”

While I appreciate the reversal of the ridiculous and untenable decision notice of Position Number 62210022, exempting all three documents, I do highlight that such an unethical and high handed decision, clearly made to cause unlawful delay, should not have occurred in the first place.

It is quite a reversal from 0% access to 90% access plus additional documents.

I note that artificially pushing FOIs through to Internal Reviews and IC Reviews, is both wasteful of Commonwealth resources and contrary to the FOI Act obligations.

It does not do the DVA any favours.

That said, I believe your decision to be within the requirements of the FOI Act, bar identification of the decision maker (the DVA seems to be unique in using only position numbers as identification, which is weird as even sworn officers in the AFP do not do this in their FOIs - the DVA isn’t a security or defence or intelligence agency, so this improper practice is untenable), so I will give you a pass on that and close off this FOI here.

Yours sincerely,

Julie