Investigations
Dear Australian Public Service Commission,
Pursuant to the Freedom of Information Act 1982 (Cth), I request any and all documents sent or received by, or prepared for, or prepared by, or made use of by each of:
a) Gordon de Brouwer,
b) Peter Woolcott,
c) Helen Wilson,
d) Rina Bruinsma,
e) Grant Lovelock,
f) Jo Talbot,
g) Charmaine Sims,
h) any occupants, whether in a substantive or acting capacity, of the role of Assistant Commissioner, Integrity, Performance and Employment policy,
in respect of inadequate investigations, or in respect of reports of inadequate investigations, relating to misconduct in the Australian Public Service, or any kinds of unlawful conduct by officials in the Australian Public Service (including agency heads and statutory office holders), from 1 January 2020 to 29 August 2023.
Yours faithfully,
Louis Verhuizen
OFFICIAL
Dear Mr Verhuizen,
I am writing to acknowledge receipt of your request under the Freedom of
Information Act 1982 for access to documents held by the Australian Public
Service Commission (The Commission).
The timeframe for responding to your request is 30 days from the date of
receipt. Therefore, the due date for this request is Thursday 28 September
2023.
This timeframe may be extended in certain circumstances. You will be
notified if these circumstances arise and the timeframe is extended.
Kind Regards,
FOI OFFICER
Legal Services
Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601
t: 02 6202 3813 w: [1]www.apsc.gov.au
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delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.
______________________________________________________________________
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OFFICIAL
Good afternoon Louis,
Thank you for submitting a Freedom of Information request to the
Australian Public Service Commission (the Commission).
I am writing to inform you that the scope of your request is too broad and
the Commission is unable to process it in its current form. I am kindly
requesting if you could refine the scope of your request such as reducing
the timeframe, providing us with information you are not seeking etc.
Please send us a response by Wednesday 13 September 2023.
Kind Regards,
FOI OFFICER
Legal Services
Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601
t: 02 6202 3813 w: [1]www.apsc.gov.au
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been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message,
you
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party or take action in reliance of any material contained within it. If
you
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Dear FOI,
Thank you for your email.
In your email you note that the scope of my request “is too broad and the Commission is unable to process it in its current form.”
It is not clear what the statutory basis of your statement is.
The only ground for refusing to process an FOI request is set out in section 24 of the Freedom of Information Act 1982 (Cth) (FOI Act), which relates to a diversion of the resources of an agency.
In order to invoke section 24, the work involved in processing a request for documents under the FOI Act would substantially AND unreasonably divert the resources of the entire agency from its other operations: FOI Act, s 24AA(1)(a).
A request can be described quite broadly and must be read fairly by an agency, being mindful not to take a narrow or pedantic approach to its construction: ‘BI’ and Professional Services Review [2014] AICmr 20.
I have made a valid request for access to documents. It is a narrow request, in that I have identified the people with which the request is associated, the timeframe for the search (which is relatively short), and the subject matter.
Specifically, I have requested access to documents sent or received by, or prepared for or by, or made use of by 7 named individuals, as well as an officeholder, in an agency of some 380 people. Moreover, I have narrowed the request for documents to a very small class – namely documents in respect of inadequate investigations (i.e. investigations not conducted according to law), or in respect of reports of inadequate investigations (i.e. reports of investigations not conducted according to law), relating to misconduct in the Australian Public Service, or any kinds of unlawful conduct by officials in the Australian Public Service (including agency heads and statutory office holders).
There is, therefore, no basis for claiming that the documents are not sufficiently identified.
As a Commonwealth integrity agency, the response to my FOI request should be that there are no documents that fall within the scope of the request because Commonwealth integrity agencies should not be conducting inadequate investigations (i.e. investigations not conducted according to law). That being said, a set of materials has come to my attention that has prompted me to make this FOI request.
I cannot imagine that processing a request for a very narrow class of documents – documents in respect of inadequate investigations (i.e. investigations not conducted according to law), or in respect of reports of inadequate investigations (i.e. reports of investigations not conducted according to law), relating to misconduct in the Australian Public Service, or any kinds of unlawful conduct by officials in the Australian Public Service (including agency heads and statutory office holders) – pertaining to 7 people and an officeholder in an agency of some 380 people would substantially AND unreasonably divert the resources of the entire agency from its other operations.
Unless you can identify a lawful ground to support your statement that my request “is too broad and the Commission is unable to process it in its current form”, you must, with respect, process my request as it stands.
If you are claiming a practical refusal ground, please provide me with formal notification of that fact, in accordance with subsection 24AB(2) of the FOI Act. In other words, please give me written notice stating the following:
a) an intention to refuse access to a document in accordance with a request;
b) the practical refusal reason;
c) the name of an officer of the agency or member of staff of the Minister (the contact person) with whom the applicant may consult during a period;
d) details of how the applicant may contact the contact person;
e) that the period (the consultation period) during which the applicant may consult with the contact person is 14 days after the day the applicant is given the notice.
If you are not claiming a practical refusal ground, please process my FOI request as it stands.
Of course, if you are about to claim that processing a request in respect of documents in the possession of 7 identified individuals and an office holder about inadequate investigations (i.e. investigations not conducted according to law), or in respect of reports of inadequate investigations (i.e. reports of investigations not conducted according to law), relating to misconduct in the Australian Public Service, or any kinds of unlawful conduct by officials in the Australian Public Service (including agency heads and statutory office holders) would substantially and unreasonably divert the resources of the entire Australian Public Service Commission from its other operations, then the Australian Public Service Commission is in deeper trouble than I thought.
Yours sincerely,
Louis Verhuizen
Dear FOI,
If you are going to claim a practical refusal ground for refusing to process my FOI request, would you please provide me with:
a) the representative sample of documents that have been assessed to determine that there is a practical refusal ground: Paul Farrell and Prime Minister of Australia (Freedom of information) [2017] AICmr 44; GD’ and Department of the Prime Minister and Cabinet [2015] AICmr 46; Farrell and Department of Immigration and Border Protection (No. 2) [2014] AICmr 121; ‘DC’ and Department of Human Services [2014] AICmr 106; Farrell and Department of Immigration and Border Protection (No. 2) [2014] AICmr 121; ‘DC’ and Department of Human Services [2014] AICmr 106; and ‘AP’ and Department of Human Services [2013] AICmr 78; and
b) an indication of the number of documents that are likely to be released in the light of the sample exercise undertaken: Paul Farrell and Prime Minister of Australia (Freedom of information) [2017] AICmr 44 [25]; and
c) in the light of the assessment of the sample, an indication of the complexity of the potential decision, the number of exemptions required, the topic and content of the documents, and the number of consultations required and effort required to contact third parties based on available contact details: Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of information) [2015] AATA 995 [57] (Justice Jagot, currently of the High Court of Australia, sitting as a Presidential Member of the Administrative Appeals Tribunal).
Thanks in advance for your cooperation.
Yours sincerely,
Louis Verhuizen
OFFICIAL
Dear Mr Verhuizen,
Please find attached a decision notice in relation to your recent freedom
of information request.
Kind Regards,
FOI OFFICER
Legal Services
Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601
t: 02 6202 3813 w: [1]www.apsc.gov.au
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with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message,
you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If
you
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Dear Ms McIntyre,
Firstly, thank you for processing my FOI request. Obviously, the statements made, on 6 September 2023, that the scope of my request is too broad and that the APSC “is unable to process it in its current form” are not true.
Secondly, the decision to refuse access on the basis on s 24A seems incorrect.
It is public knowledge that the acting Commonwealth Ombudsman, Penny McKay, sent Mr Peter Woolcott, the Public Service Commissioner, a letter (https://docdro.id/KxHOwyk) on 18 March 2022 notifying him that, after conducting a preliminary inquiry under s 7A of the Ombudsman Act 1976 (Cth), she had commenced an investigation into Kate McMullan’s handling of a public interest disclosure investigation.
According to Ms McKay, the public interest disclosure had a reference of PID-2020-400006, which is the same reference for the disclosure allocated to the APSC in relation to recruitment decisions in the Federal Court Statutory Agency (https://docdro.id/YAB3yIZ).
It’s obvious that Ms McKay’s letter is a document received by Peter Woolcott in respect of an inadequate investigation, or in respect of a report of an inadequate investigation, relating to misconduct in the Australian Public Service, or any kinds of unlawful conduct by officials in the Australian Public Service (including agency heads and statutory office holders), from 1 January 2020 to 29 August 2023.
I request an internal review of your decision on the basis that your claim that there are no documents within the scope of my request is untrue. Please pass this on to the person who conducts Freedom of Information reviews.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/i...
Yours faithfully,
Louis Verhuizen
OFFICIAL
Good afternoon Mr Verhuizen,
The Australian Public Service Commission (the Commission) is writing to
acknowledge receipt of your request for internal review under the Freedom
of Information Act 1982 (FOI Act).
The timeframe for responding to your internal review request is 30 days
from the date of receipt. This timeframe for internal review may be
extended in very limited circumstances. You will be notified if these
circumstances arise and the timeframe is extended.
Please note that there is a new LEX number for your internal review
request. All correspondences will be referred under LEX 660.
Kind Regards,
FOI OFFICER
Legal Services
Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601
t: 02 6202 3813 w: [1]www.apsc.gov.au
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attachments to a third party.
______________________________________________________________________
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OFFICIAL
Good morning,
Please find attached a decision notice in relation to your recent request
for internal review.
Kind Regards,
FOI OFFICER
Legal Services
Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601
t: 02 6202 3813 w: [1]www.apsc.gov.au
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with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message,
you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If
you
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[1]Office of the Australian Information Reference Code:
Commissioner ICR_10-55713553-4146
You submitted a form called: FOI Review_
Your form reference code is: ICR_10-55713553-4146
To check the progress of your submission and/or confirm it has been
received you should contact the agency that provides the form. These
details are displayed below.
Office of the Australian Information Commissioner
[2]http://www.oaic.gov.au | [3]1300 363 992 | [4][email address]
GPO Box 5218, Sydney NSW 2001
Note: Please do not reply to this auto-generated email.
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Our reference: MR23/01428
By email: [FOI #10642 email]
Receipt of your IC review application
Thank you for your application for Information Commissioner Review (IC
review).
The Office of the Australian Information Commissioner (OAIC) is
considering your application.
If you wish to advise the OAIC of any changes to your circumstances,
including your contact details or if your FOI request has been resolved,
please write to [email address] and quote MR23/01428.
Yours sincerely
Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
Our reference: MR23/01428
Agency reference: LEX 660
Mr Louis Verhuizen
By email: [1][FOI #10642 email]
Dear Mr Verhuizen
Thank you for your application for review. We have today informed the
Australian Public Service Commission that the Information Commissioner
will undertake an IC review and requested information to assist with
progressing the review.
We will provide you with an update when we have heard from the Australian
Public Service Commission.
Kind regards
[2][IMG] Dipali Goel (she/her)
Intake and Early Resolution Officer
Freedom of Information Branch
Office of the Australian Information Commissioner
Sydney |GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [3][email address]
The OAIC acknowledges Traditional Custodians of Country across Australia
and their continuing connection to land, waters and communities. We pay
our respect to First Nations people, cultures and Elders past and present.
[4]Subscribe to Information Matters
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disclosure or copying of this email is unauthorised. If you received this
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Dear Dipali,
Thank you for letting me know. I hope to hear from you soon.
Wishing you a safe and relaxing holiday break.
Yours sincerely,
Louis Verhuizen
Our reference: MR23/01428
Agency reference: LEX 660
Agency OAIC reference: LEX 767
By email: [1][FOI #10642 email]
Information Commissioner review application about the Australian Public
Service Commission
Dear Louis Verhuizen,
I refer to the application for Information Commissioner review (IC review)
of an internal review decision made by the Australian Public Service
Commission (the Agency) under the Freedom of Information Act 1982 (Cth)
(the FOI Act).
After further review of the IC review application, I note that:
* On 27 October 2023, the Agency notified the FOI applicant of their
internal review decision via the nominated Right to Know (RTK)
electronic address ‘[FOI #10642 email]’.
1. On 29 November 2023, the Office of the Australian Information
Commissioner (OAIC) received an IC review application which provided
the contact email address of
‘[FOI #10642 email]’.
At this time, the OAIC does not yet have sufficient evidence to be
satisfied that you were the FOI applicant and, therefore, that you had a
right to apply for IC review.
Action required by you before: 13 June 2024
Section 54L(3) of the FOI Act provides that an Information Commissioner
review (IC review) application may be made by, or on behalf of, the person
who made the request to which the decision relates.
As such, if you wish to proceed with this IC review, please provide a copy
of any notification emails sent by the Right to Know website’s
administrator about the FOI request or a screenshot of the ‘My requests’
page of your account on the Right to Know website (after you log into your
Right to Know account) showing the FOI request in question. You may also
upload this correspondence to the request on Right to Know and provide us
with confirmation of this.
Discretion not to continue to undertake an IC review
Under s 54W(c) of the FOI Act, the Information Commissioner may decide not
to continue to undertake a review if an applicant fails to comply with a
[2]direction of the Information Commissioner. [1.3]
The Direction as to certain procedures to be followed by applicants in
Information Commissioner reviews, issued by the Australian Information
Commissioner under s 55(2)(e)(i), states:
* An application for IC review may be made by, or on behalf of, the person
who made the request to which decision relates (s 54L(3)). The OAIC may
require information about the applicant’s identity to establish that
they are the person who made the original FOI request or evidence that a
third party is authorised to seek review of the decision by that person.
[1.15]
1. The Information Commissioner may decide not to undertake an IC review,
or not continue to undertake an IC review, where an IC review
applicant has failed to cooperate in progressing the IC review
application or the IC review without reasonable excuse (s 54W(a)(ii)).
[1.24]
2. Applicants must respond to enquiries from the OAIC within the period
provided unless there are circumstances warranting a longer period to
respond. Applicants who are satisfied with the decision and do not
wish to proceed with the IC review must advise the OAIC in writing.
Applicants who are not satisfied with the Agency or Minister’s
decision must explain why they disagree with the decision and the
basis on which they wish to proceed with the IC review. [1.22] and
[1.33]
If you do not provide the information requested above by 13 June 2024, the
OAIC will finalise this matter on the basis that we are not satisfied the
IC review application has been made by, or on behalf of, the person who
made the FOI request.
Assistance
If you are unable to respond by 13 June 2024, you must request more time
at the earliest opportunity and no later than 11 June 2024. Requests for
more time must explain why you need more time, and you must propose a new
date to provide your response.
If you require assistance regarding this email, please contact us at
[3][email address].
Please quote the reference MR23/01428 in all correspondence.
Kind regards,
[4][IMG] Georgia Furlong (she/her)
Review Advisor
Freedom of Information Branch
Office of the Australian Information Commissioner
Sydney
P 1300 363 992 E [5][email address]
The OAIC acknowledges Traditional Custodians of Country across Australia
and their continuing connection to land, waters and communities. We pay
our respect to First Nations people, cultures and Elders past and present.
[6]Subscribe to Information Matters
Notice:
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be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
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OFFICIAL
Dear Applicant
We have been notified by the Office of the Australian Information
Commissioner (‘OAIC’) that you have sought Information Commissioner review
of the Australian Public Service Commission’s (‘the Commission’) internal
review decision dated 27 October 2023.
We understand that you have sought IC review of the Commission’s internal
review decision because you are not satisfied with the searches undertaken
for documents falling within the scope of your request.
Noting the passage of time since the Commission made its decision, we are
writing to engage with you on your application, in the hopes of resolving
your concerns or at least narrowing the issues in dispute. To this end, we
would be grateful if you could provide us with some further comments
regarding why you disagree with the Commission’s decision and any action
you would like us to take in order to address your concerns. If there are
documents which you have not received, that you are specifically seeking
access to, it would be helpful if you could describe them with as much
specificity as possible.
We would appreciate if you could respond to us by Tuesday, 18 June 2024
with any further submissions you wish to make. Please note, we will
provide a copy of this correspondence and any response received from you
to the OAIC to provide an update on our engagement with you.
Should you have any questions regarding this email, please contact us at
[1][APSC request email] and quote reference number LEX 767.
Kind regards
FOI OFFICER
Legal Services
Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601
w: [2]www.apsc.gov.au
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delete it (including any copies) and notify the sender. Please consult
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attachments to a third party.
From: FOI
Sent: Monday, 30 October 2023 10:10 AM
To: [FOI #10642 email]
Subject: LEX 660 (LEX 629) - Notice of Internal Review Decision
[SEC=OFFICIAL]
OFFICIAL
Good morning,
Please find attached a decision notice in relation to your recent request for
internal review.
Kind Regards,
FOI OFFICER
Legal Services
Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601
t: 02 6202 3813 w: [7]www.apsc.gov.au
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information, and neither are waived or lost if the email has been sent in error.
If you have received this email in error, please delete it (including any
copies) and notify the sender. Please consult with APSC Legal Services before
using disclosing any part of this email or attachments to a third party.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message,
you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If
you
have received this message in error, please notify the sender immediately
by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________
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[1]Office of the Australian Information
Commissioner Reference Code: VBNJWBWP
You submitted a form called: Enquiry Form
Your form reference code is: VBNJWBWP
Your submission reference number is: 56921509
To check the progress of your submission and/or confirm it has been
received you should contact the agency that provides the form. These
details are displayed below.
Please see the attached PDF for a copy of your form submission.
Office of the Australian Information Commissioner
[2]https://www.oaic.gov.au | [3]1300 363 992 | [4][email address]
GPO Box 5218, Sydney NSW 2001
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[1]Office of the Australian Information
Commissioner Reference Code: VBNJWBWP
You submitted a form called: Enquiry Form
Your form reference code is: VBNJWBWP
Your submission reference number is: 56921509
To check the progress of your submission and/or confirm it has been
received you should contact the agency that provides the form. These
details are displayed below.
Please see the attached PDF for a copy of your form submission.
Office of the Australian Information Commissioner
[2]https://www.oaic.gov.au | [3]1300 363 992 | [4][email address]
GPO Box 5218, Sydney NSW 2001
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[1]Office of the Australian Information
Commissioner Reference Code: VBNJWBWP
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Our reference: EN24/05390
Dear Louis Verhuizen
Thank you for your enquiry.
The [1]Office of the Australian Information Commissioner (the OAIC)
receives a large quantity of written enquiries each day. An Enquiries
Officer will be assigned to your enquiry and will be in contact soon.
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Dear Georgia,
Reference: MR23/01428
Thanks for your email of 30 May 2024. I noticed that you sent a similar email to another FOI applicant (Marius) and I have decided to follow their example in providing you with a screen shot of my "My Requests" page on RTK to show that I made the original FOI request to the APSC on 30 August 2023.
Like Marius, I note that it is not possible to upload screen shots on RTK because RTK only permits the entry of plain text context and does not permit me to attach anything to those entries (like documents or images).
Like Marius, I have uploaded the screen shot of my "My Requests" page via the OAIC's queries webpage, which allows me to upload content.
I submitted the screen shot at about 2:40 pm today. The form reference is VBNJWBWP and the submission reference is 56921509. Please let me know if you need anything more from me. Like Marius, I wouldn't want my IC review request finalised on account of a misunderstanding.
Yours sincerely,
Louis Verhuizen
Dear FOI Officer (Australian Public Service Commission),
I appreciate you reaching out to me by email on June 5, 2024.
In response to my FOI request dated 30 August 2023, Melanie McIntyre refused access to the documents that I requested. In Melanie McIntyre's decision, which was sent to me on 28 September 2023, Melanie stated that the documents cannot be found or do not exist.
I applied for internal review on 28 September 2023. In my application for review, I noted that Melanie's decision could not be correct because there are documents that have been published by the APSC pursuant to other FOI decisions that demonstrate that the documents that I requested do exist. Plainly, Melanie's decision was not true.
Despite drawing attention to the fact that there are actually documents within the APSC's possession that are within scope of my request, on 30 October 2023, Amanda Harmer of the APSC again refused to provide access to the documents because the documents cannot be found or do not exist.
I was prepared to believe that Melanie had made a mistake in providing her decision but after demonstrating that there are documents in scope of my request, I find it hard to believe that Amanda's decision was a mistake. In my opinion, Amanda was deceptive.
I applied for IC review of Amanda Harmer's decision because I was able to demonstrate that what Amanda communicated in her decision was plainly false. There are obviously documents within scope of my request. I provided links to some of those documents in my internal review request, which I invite you to again refer to. There are also other documents that have been published by the APSC demonstrating that there are in fact documents in the possession of the APSC that are within the scope of my request: e.g.
https://archive.org/download/pid-2020-40...
There are others too.
The problem is that I do not just how many there are. Perhaps there will be documents that were sent to the APS Commissioner about the preliminary inquiry referred to in the Senate estimates pocket brief. There is likely to be a document relating to the outcome of the investigation that was commenced by Penny McKay, the acting Commonwealth Ombudsman. The fact is that only officials in the APSC know just how many documents there are in the scope of my request. What I can say with certainty is that both Melanie McIntyre's and Amanda Harmer's claims that there are no documents that can be found or that there are no documents that exist are not true.
The community does not know exactly what documents the Commonwealth government has but members of the community are entitled to apply to access them. A fundamental presumption of the FOI Act is that Commonwealth officials will be honest when dealing with FOI requests and will not falsely claim that there are no documents when documents do in fact exist. I am disappointed that I was lied to by Amanda Harmer. In reaching out to me you have asked me what action the APSC can take to resolve my concerns. I ask the APSC to engage with my FOI request honestly, and with integrity and good faith. When officials in integrity agencies lie, obfuscate or deliberately mislead members of the community about the existence of documents, they erode public confidence and trust in their agencies and in the public service. They also show a contempt for their statutory obligations. That's not appropriate. The Royal Commissioner Catherine Holmes said as much (and in a more eloquent way than I have).
To resolve this matter, please see to it that a lawful and, above all, truthful decision is made in relation to the documents that I requested on 30 August 2023.
Yours faithfully,
Louis Verhuizen
OFFICIAL
Dear Applicant
Please find attached submissions, as provided to the OAIC on 5 July 2024.
Regards
Melanie McIntyre, General Counsel
-----Original Message-----
From: Louis Verhuizen <[FOI #10642 email]>
Sent: Thursday, 6 June 2024 4:27 PM
To: FOI <[email address]>
Subject: Re: Freedom of Information request - Investigations
Dear FOI Officer (Australian Public Service Commission),
I appreciate you reaching out to me by email on June 5, 2024.
In response to my FOI request dated 30 August 2023, Melanie McIntyre refused access to the documents that I requested. In Melanie McIntyre's decision, which was sent to me on 28 September 2023, Melanie stated that the documents cannot be found or do not exist.
I applied for internal review on 28 September 2023. In my application for review, I noted that Melanie's decision could not be correct because there are documents that have been published by the APSC pursuant to other FOI decisions that demonstrate that the documents that I requested do exist. Plainly, Melanie's decision was not true.
Despite drawing attention to the fact that there are actually documents within the APSC's possession that are within scope of my request, on 30 October 2023, Amanda Harmer of the APSC again refused to provide access to the documents because the documents cannot be found or do not exist.
I was prepared to believe that Melanie had made a mistake in providing her decision but after demonstrating that there are documents in scope of my request, I find it hard to believe that Amanda's decision was a mistake. In my opinion, Amanda was deceptive.
I applied for IC review of Amanda Harmer's decision because I was able to demonstrate that what Amanda communicated in her decision was plainly false. There are obviously documents within scope of my request. I provided links to some of those documents in my internal review request, which I invite you to again refer to. There are also other documents that have been published by the APSC demonstrating that there are in fact documents in the possession of the APSC that are within the scope of my request: e.g.
https://archive.org/download/pid-2020-40...
There are others too.
The problem is that I do not just how many there are. Perhaps there will be documents that were sent to the APS Commissioner about the preliminary inquiry referred to in the Senate estimates pocket brief. There is likely to be a document relating to the outcome of the investigation that was commenced by Penny McKay, the acting Commonwealth Ombudsman. The fact is that only officials in the APSC know just how many documents there are in the scope of my request. What I can say with certainty is that both Melanie McIntyre's and Amanda Harmer's claims that there are no documents that can be found or that there are no documents that exist are not true.
The community does not know exactly what documents the Commonwealth government has but members of the community are entitled to apply to access them. A fundamental presumption of the FOI Act is that Commonwealth officials will be honest when dealing with FOI requests and will not falsely claim that there are no documents when documents do in fact exist. I am disappointed that I was lied to by Amanda Harmer. In reaching out to me you have asked me what action the APSC can take to resolve my concerns. I ask the APSC to engage with my FOI request honestly, and with integrity and good faith. When officials in integrity agencies lie, obfuscate or deliberately mislead members of the community about the existence of documents, they erode public confidence and trust in their agencies and in the public service. They also show a contempt for their statutory obligations. That's not appropriate. The Royal Commissioner Catherine Holmes said as much (and in a more eloquent way than I have).
To resolve this matter, please see to it that a lawful and, above all, truthful decision is made in relation to the documents that I requested on 30 August 2023.
Yours faithfully,
Louis Verhuizen
-----Original Message-----
Our reference: EN24/05390
Dear Louis Verhuizen
Thank you for your enquiry.
The [1]Office of the Australian Information Commissioner (the OAIC)
receives a large quantity of written enquiries each day. An Enquiries
Officer will be assigned to your enquiry and will be in contact soon.
We generally aim to respond to written enquiries within ten working days.
However, where we experience higher volumes of written enquiries, there
may be a delay of up to 4 weeks. If your enquiry is urgent and requires an
immediate response, please telephone us on 1300 363 992 and quote your
reference number. More complex phone enquiries may require a written
response and may still take some time.
To keep in touch with the OAIC, you can go to the [2]sign-up page on our
website and sign up to receive our newsletter. You can also find
additional information on our website [3]www.oaic.gov.au.
Yours sincerely
Enquiries Team
Office of the Australian Information Commissioner
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
2. https://www.oaic.gov.au/updates/sign-up/
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Dear Georgia,
Reference: MR23/01428
I refer to Melanie McIntyre’s submissions about MR23/01428, which were sent to me via www.righttoknow.org.au on 4 September 2024: https://www.righttoknow.org.au/request/i....
Ms McIntyre correctly notes, in her submissions (https://www.righttoknow.org.au/request/1...), that I have applied for IC review of Amanda Harmer’s internal review decision. In that decision, Amanda Harmer stated that the APSC did not have the documents requested and refused access under section 24A of the FOI Act.
At [15] of her submissions, Ms McIntyre notes “that many of the documents sought by the Applicant appear to have already been released by the Commission”.
But if “many of the documents sought by the Applicant appear to have already been released by the Commission”, then Ms McIntyre would be accepting that the basis of my IC review application is true (the basis was that Amanda Harmer’s decision to refuse access to documents on the ground that no such documents exist is false).
Section 55D of the FOI Act provides that an agency has the onus of establishing that a decision given in respect of a request or application is justified. Melanie McIntyre has admitted that “many of the documents sought by the Applicant appear to have already been released by the Commission”, which means that not only has she failed to establish that the decision given, on internal review, in respect of the request is justified, she has established the opposite of what was stated on internal review by Amanda Harmer is actually true. Therefore, Amanda Harmer's decision must be set aside and a lawful and truthful decision must be made.
I have applied to the APSC for access to documents under the FOI Act and am entitled to receive a truthful and lawful decision from the decision maker. As I explained in my email to the APSC on 6 June 2024:
“The problem is that I do not just how many [documents] there are. Perhaps there will be documents that were sent to the APS Commissioner about the preliminary inquiry referred to in the Senate estimates pocket brief. There is likely to be a document relating to the outcome of the investigation that was commenced by Penny McKay, the acting Commonwealth Ombudsman. The fact is that only officials in the APSC know just how many documents there are in the scope of my request. What I can say with certainty is that both Melanie McIntyre's and Amanda Harmer's claims that there are no documents that can be found or that there are no documents that exist are not true.
The community does not know exactly what documents the Commonwealth government has but members of the community are entitled to apply to access them. A fundamental presumption of the FOI Act is that Commonwealth officials will be honest when dealing with FOI requests and will not falsely claim that there are no documents when documents do in fact exist. I am disappointed that I was lied to by Amanda Harmer. In reaching out to me you have asked me what action the APSC can take to resolve my concerns. I ask the APSC to engage with my FOI request honestly, and with integrity and good faith. When officials in integrity agencies lie, obfuscate or deliberately mislead members of the community about the existence of documents, they erode public confidence and trust in their agencies and in the public service. They also show a contempt for their statutory obligations. That's not appropriate. The Royal Commissioner Catherine Holmes said as much (and in a more eloquent way than I have).”
Ms McIntyre’s duty under the IC review is to demonstrate that Ms Harmer’s IR decision is justifiable. She has conceded that it is not justifiable. Instead of apologising, setting aside Ms Harmer’s false decision, and providing lawful reasons and access to the documents requested, Ms McIntyre has proceeded to demand, at [18]-[19], that my IC review application be dismissed because my application for IC review is causing delays. This is bizarre and does not address what Ms McIntyre should be doing under the FOI Act for the purposes of this IC review (which is to is to demonstrate to the Information Commissioner that Ms Harmer’s IR decision is justifiable).
Ms McIntyre’s submissions are also an abuse of process because she is extending an IC review application in full and conceded knowledge that Ms Harmer’s decision is untrue. If anybody is a source of delay and inefficiency, it is Ms McIntyre, and, as the General Counsel of the APSC, she should be rebuked for wasting resources.
Before I end this email, I would like to draw paragraph 7 of Ms McIntyre’s submissions to your attention. The Directions as to certain procedures to be followed by agencies and ministers on IC review make clear that the “OAIC expects that applicants and agencies will engage with the IC review process, with respect and courtesy”: Directions, paragraph 2.7. Ms McIntyre advances unsubstantiated, irrelevant and disrespectful allegations in that paragraph of her submissions. I think Ms McIntyre should be also rebuked for the disrespectful, irrelevant and unsubstantiated allegations she has levelled against me.
I am most disappointed with Ms McIntyre. I expected a more dignified, relevant and professional set of submissions from the General Counsel of the APSC.
Yours sincerely,
Louis Verhuizen
Dear FOI,
Reference: MR23/01428
Please find my submissions in response to Melanie McIntyre's submissions posted online: https://www.righttoknow.org.au/request/i....
Yours sincerely,
Louis Verhuizen
Dear Georgia,
Reference: MR23/01428
I am emailing you to let you know that I have drawn my submissions to the attention of the APSC's FOI team: https://www.righttoknow.org.au/request/i...
Yours sincerely,
Louis Verhuizen