Jesse Bird Inquiry Report
Verity Pane made this Freedom of Information request to Department of Veterans' Affairs
This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.
Dear Department of Veterans' Affairs (DVA),
Media reporting, including Ministerial press release, in October 2017 state that DVA produced an “official inquiry” report into how DVA contributed to the suicide of Defence veteran Jesse Bird (reported by multiple news agencies but this particular report alleges copy of parts of the report were given to an ABC reporter beyond just recommendations made - http://www.abc.net.au/news/2017-10-14/je... ).
It appears that while it seems the Minister tabled just the recommendations in Parliament, the actual report in question has not been published to date (but various people have received in, in part or in full, via other means)
I seek under the Freedom of Information Act copy of this official inquiry report, in full or as much as no legitimate exemption ground exists for, not limited to just the recommendations. I also seek any documents which relate to the disclosure of the report to others outside the Department itself (but explicitly seek any non-exempt documents to the Minister in relation to the report as well as the report’s distribution).
Given the wide media reporting, which includes Ministerial statements, it’s a public interest matter and should be treated accordingly.
Inquiries typically produce a public report, but in this case DVA has not done so, and there doesn’t seem to be a reason why.
Yours faithfully,
Verity Pane
Dear Department of Veterans' Affairs,
This is a follow-up to my FOI application of 14 December, which is required under s 15(5)(b) to be responded to by 15th January 2018, which is within six business days of today.
I write because, contrary to s 15(5)(a), the Department has failed to acknowledge my FOI application, within the 14 day period required, following the FOI application having been made, thus the Department is already in breach of the FOI Act, which is disappointing and points to ongoing issues still existing within the Information Law area of DVA.
To remind you, I have reproduced the relevant section of s 15 below:
(5) On receiving a request, the agency or Minister must:
(a) as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified that the request has been received.
The Department has not taken any reasonable steps, despite being aware of this FOI application.
Remedy would be appreciated, especially since a grace period for the satisfaction of this statutory requirement was extended to the Department by me (yet still not rectified).
Yours faithfully,
Verity Pane
Dear Department of Veterans' Affairs,
For situational awareness I advise you that I have also made the following FOI application to Defence in relation to documents it holds. To avoid doubt, my FOI application made to DVA only seeks copy of those documents that DVA holds (and DVA should process the application on that basis).
Yours faithfully,
Verity Pane
Dear Department of Defence FOI Section,
Under FOI I apply for copy of the inquiry documents held by Defence that relate to the
“Joint Inquiry into the facts surrounding the management of Mr Jesse Bird’s case” that Defence undertook at the direction of the former Minister of Veterans’ Affairs, Dan Tehan.
Where the documents in scope contain the personal information about a private individual (note personal information, not official information - official information includes details of any public servant carrying out their official duties and does not fall into the scope of personal information - and personal information about an individual is a narrower scope than information that may relate to an individual), that information may be redacted.
I note that this Joint Inquiry had a Ministerial press release http://minister.dva.gov.au/media_release... - where former Veterans’ Affiars Minister Tehan stated:
“One such veteran was Jesse Bird. With the approval of his family, today I will show how Jesse’s case highlights the need for us to continue to improve the current system... Departmental processes failed or simply did not exist to offer services to help Jesse... I asked the Departments of Veterans’ Affairs and Defence and the Veterans and Veterans Families Counselling Service to thoroughly examine his case. They have conducted a review which looked at his experience with Defence and Veterans’ Affairs. This occurred in consultation with his family.
I delivered a report on this investigation to Jesse’s family on 15 September. Amongst other findings, the report into the management of Jesse Bird’s case shows that while some aspects of process and management were within expectations, others were contrary to the Department of Veterans’ Affairs policy and practice. The Department of Veterans’ Affairs either did not or could not provide the support or proactive engagement Jesse needed.”
I note that this report also received wide reporting in the media, and it appears an ABC journalist in particular was given access to parts of the Joint Inquiry report beyond just the recommendations(it was also reported parts of a draft report were leaked to the media, before the Bird family had seen it) http://www.abc.net.au/news/2017-10-14/je... http://www.abc.net.au/news/2017-08-18/je... http://www.abc.net.au/news/2017-07-20/dv... http://www.theaustralian.com.au/news/inq... http://www.heraldsun.com.au/news/opinion... http://www.smh.com.au/federal-politics/p...
The fact that the former Veterans’ Affairs Minister saw it appropriate to brief the media and disclose details of the Joint Inquiry report (both formally and informally), to table the recommendations in Parliament. and for a number of media outlets to make multiple new articles about the Joint Inquiry highlights that at both the Department and Ministerial level, disclosure was seen as promoting better informed decision making, and increasing scrutiny, discussion, comment and review of the Government’s activities in relation to matters under review by the Joint Inquiry, and that they were of general public interest or in the interest of a substantial section of the public.
I also note the Minister’s statement regarding that the disclosures made were with the consent of the Bird family.
Yours faithfully,
Verity Pane
Dear Verity Pane
Thank you for your emails of 7 January 2017 and your FOI Application of 14 December 2017. I apologise for the delay in responding.
The Department will provide you with a decision in this matter as soon as is practicable.
Kind regards,
Alexander Gent
Legal Officer
Information Law
Legal Services & Assurance Branch
Department of Veterans’ Affairs | www.dva.gov.au
ph (02) 6289 6581 | ext 616581 | e [email address]
-----Original Message-----
From: Verity Pane [mailto:[FOI #4262 email]]
Sent: Sunday, 7 January 2018 12:23 AM
To: FOI <[email address]>
Subject: Re: Freedom of Information request - Jesse Bird Inquiry Report [TO BE CLASSIFIED]
Dear Department of Veterans' Affairs,
This is a follow-up to my FOI application of 14 December, which is required under s 15(5)(b) to be responded to by 15th January 2018, which is within six business days of today.
I write because, contrary to s 15(5)(a), the Department has failed to acknowledge my FOI application, within the 14 day period required, following the FOI application having been made, thus the Department is already in breach of the FOI Act, which is disappointing and points to ongoing issues still existing within the Information Law area of DVA.
To remind you, I have reproduced the relevant section of s 15 below:
(5) On receiving a request, the agency or Minister must:
(a) as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified that the request has been received.
The Department has not taken any reasonable steps, despite being aware of this FOI application.
Remedy would be appreciated, especially since a grace period for the satisfaction of this statutory requirement was extended to the Department by me (yet still not rectified).
Yours faithfully,
Verity Pane
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #4262 email]
This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/offi...
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
-------------------------------------------------------------------
______________________________________________________________________
IMPORTANT
1. Before opening any attachments, please check for viruses.
2. This e-mail (including any attachments) may contain confidential information
for the intended recipient. If you are not the intended recipient,
please contact the sender and delete all copies of this email.
3. Any views expressed in this e-mail are those of the sender and are not
a statement of Australian Government Policy unless otherwise stated.
4. Electronic addresses published in this email are not conspicuous publications and DVA does not consent to the receipt of commercial electronic messages.
5. To unsubscribe from emails from the Department of Veterans' Affairs (DVA) please go to
http://www.dva.gov.au/contact_us/Pages/f...
, and advise which mailing list you would like to unsubscribe from.
6. Finally, please do not remove this notice.
Dear Verity Pane
Please find attached my decision in this matter. The documents in question require further formatting changes to enable provision via email. They will be provided to you as soon as possible.
Kind regards,
Alexander Gent
Legal Officer
Information Law
Legal Services & Assurance Branch
Department of Veterans’ Affairs | www.dva.gov.au
ph (02) 6289 6581 | ext 616581 | e [email address]
-----Original Message-----
From: Gent, Alexander On Behalf Of FOI
Sent: Tuesday, 9 January 2018 8:55 AM
To: 'Verity Pane' <[FOI #4262 email]>; FOI <[email address]>
Subject: RE: Freedom of Information request - Jesse Bird Inquiry Report [TO BE CLASSIFIED] [SEC=UNCLASSIFIED]
Dear Verity Pane
Thank you for your emails of 7 January 2017 and your FOI Application of 14 December 2017. I apologise for the delay in responding.
The Department will provide you with a decision in this matter as soon as is practicable.
Kind regards,
Alexander Gent
Legal Officer
Information Law
Legal Services & Assurance Branch
Department of Veterans’ Affairs | www.dva.gov.au ph (02) 6289 6581 | ext 616581 | e [email address]
-----Original Message-----
From: Verity Pane [mailto:[FOI #4262 email]]
Sent: Sunday, 7 January 2018 12:23 AM
To: FOI <[email address]>
Subject: Re: Freedom of Information request - Jesse Bird Inquiry Report [TO BE CLASSIFIED]
Dear Department of Veterans' Affairs,
This is a follow-up to my FOI application of 14 December, which is required under s 15(5)(b) to be responded to by 15th January 2018, which is within six business days of today.
I write because, contrary to s 15(5)(a), the Department has failed to acknowledge my FOI application, within the 14 day period required, following the FOI application having been made, thus the Department is already in breach of the FOI Act, which is disappointing and points to ongoing issues still existing within the Information Law area of DVA.
To remind you, I have reproduced the relevant section of s 15 below:
(5) On receiving a request, the agency or Minister must:
(a) as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified that the request has been received.
The Department has not taken any reasonable steps, despite being aware of this FOI application.
Remedy would be appreciated, especially since a grace period for the satisfaction of this statutory requirement was extended to the Department by me (yet still not rectified).
Yours faithfully,
Verity Pane
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #4262 email]
This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/offi...
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
-------------------------------------------------------------------
______________________________________________________________________
IMPORTANT
1. Before opening any attachments, please check for viruses.
2. This e-mail (including any attachments) may contain confidential information
for the intended recipient. If you are not the intended recipient,
please contact the sender and delete all copies of this email.
3. Any views expressed in this e-mail are those of the sender and are not
a statement of Australian Government Policy unless otherwise stated.
4. Electronic addresses published in this email are not conspicuous publications and DVA does not consent to the receipt of commercial electronic messages.
5. To unsubscribe from emails from the Department of Veterans' Affairs (DVA) please go to
http://www.dva.gov.au/contact_us/Pages/f...
, and advise which mailing list you would like to unsubscribe from.
6. Finally, please do not remove this notice.
Dear Alexander Gent,
Yet another response from DVA contrary to the obligations and duties imposed on agencies under the Freedom of Information Act, so I can’t be surprised, but am disappointed in this endemic unethical culture shown by the Information Law area of DVA.
Firstly, unless access has been deferred under s 21 of the Act, agencies are not entitled to seperate the statutory decision from documents released. To do so is an abuse of process. At expiry of the statutory decision period, agencies must have notified applicants of the decision and provided all documents (unless s 21 apply) released, it cannot simply decide it is up to them as to when this will happen or to state they will be provided at some unspecified later time, particularly when no prior consultation took place.
Secondly, the names of public servants in the course of carrying out their official duties is public information, and may not be redacted without consent (unless doing so poses a real and present risk of serious and imminent danger, such as where the officer concerned is on covert duties or has a domestic violence order or other unusual and limited circumstances). As stated by the Information Commissioner in his s93A guidelines to agencies “Where public servants’ personal information is included in a document because of their usual duties or responsibilities, it would not be unreasonable to disclose unless special circumstances existed”. The onus of proof for special circumstances rests with the agency, and merely alleging it would interfere with operational efficiency has been held by the Information Commissioner previously as insufficient for “special circumstances” - see Maurice Blackburn Lawyers and Department of Immigration and Border Protection [2015] AICmr 85 (18 December 2015).
Thirdly, “deliberative” under the FOI Act refers that a deliberative process involves the exercise of judgment in developing and making a selection from different options. As stated in Re Waterford and Department of Treasury (No. 2) [1984] AATA 67:
The action of deliberating, in common understanding, involves the weighing up or evaluation of competing arguments or considerations that may have a bearing upon one’s course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes—the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.[21]
From the information provided in the decision today, the excluded material was not a Departmental writer putting forward a range of options or recommendations for the Minister to chose from, but rather the expression of the Departmental writer’s final decision or conclusion reached, which was then put forward to the Minister to seek agreement. This redaction therefore is inappropriate as it does not met the requirement of deliberative, as it was not the Department writer seeking the Minister to select from an array of choices, but rather seeking the agreement of the Minister with the Department’s recommendation.
As DVA failed to complete this FOI by the statutory due date, this FOI is a deemed refusal.
I would also like to note that, in relation to a previous FOI https://www.righttoknow.org.au/request/a... , where DVA first advised me it had its own UCC policy but would not release it as it was “biennial internal review”, which I pointed out was an invalid exemption ground under the FOI Act, then subsequently went on to state “The Department does not have its own Unreasonable Complainant Conduct” document in response to that (making the earlier claim high farce), I have subsequently had a DVA employee unofficially send me a copy of said document (which has been in existence since 2015), demonstrating that your Information Law area has knowingly made fraudulent representation to me, and breached the FOI Act. Again, this supports that an unethical and unlawful culture exists within the Information Law area of your agency, and that your area routinely breaches its obligations under FOI law. This is, quite frankly, appalling.
Yours sincerely,
Verity Pane
Dear Verity Pane,
Please find attached the documents released to you in accordance with the FOI Act. I apologise for the brief delay - these files required alteration to get below the Department's email attachment size limit.
Kind regards,
Alexander Gent
Legal Officer
Information Law
Legal Services & Assurance Branch
Department of Veterans’ Affairs | www.dva.gov.au
ph (02) 6289 6581 | ext 616581 | e [email address]
-----Original Message-----
From: Verity Pane [mailto:[FOI #4262 email]]
Sent: Monday, 15 January 2018 7:08 PM
To: FOI <[email address]>
Subject: RE: Freedom of Information request - Jesse Bird Inquiry Report [TO BE CLASSIFIED] [SEC=UNCLASSIFIED]
Dear Alexander Gent,
Yet another response from DVA contrary to the obligations and duties imposed on agencies under the Freedom of Information Act, so I can’t be surprised, but am disappointed in this endemic unethical culture shown by the Information Law area of DVA.
Firstly, unless access has been deferred under s 21 of the Act, agencies are not entitled to seperate the statutory decision from documents released. To do so is an abuse of process. At expiry of the statutory decision period, agencies must have notified applicants of the decision and provided all documents (unless s 21 apply) released, it cannot simply decide it is up to them as to when this will happen or to state they will be provided at some unspecified later time, particularly when no prior consultation took place.
Secondly, the names of public servants in the course of carrying out their official duties is public information, and may not be redacted without consent (unless doing so poses a real and present risk of serious and imminent danger, such as where the officer concerned is on covert duties or has a domestic violence order or other unusual and limited circumstances). As stated by the Information Commissioner in his s93A guidelines to agencies “Where public servants’ personal information is included in a document because of their usual duties or responsibilities, it would not be unreasonable to disclose unless special circumstances existed”. The onus of proof for special circumstances rests with the agency, and merely alleging it would interfere with operational efficiency has been held by the Information Commissioner previously as insufficient for “special circumstances” - see Maurice Blackburn Lawyers and Department of Immigration and Border Protection [2015] AICmr 85 (18 December 2015).
Thirdly, “deliberative” under the FOI Act refers that a deliberative process involves the exercise of judgment in developing and making a selection from different options. As stated in Re Waterford and Department of Treasury (No. 2) [1984] AATA 67:
The action of deliberating, in common understanding, involves the weighing up or evaluation of competing arguments or considerations that may have a bearing upon one’s course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes—the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.[21]
From the information provided in the decision today, the excluded material was not a Departmental writer putting forward a range of options or recommendations for the Minister to chose from, but rather the expression of the Departmental writer’s final decision or conclusion reached, which was then put forward to the Minister to seek agreement. This redaction therefore is inappropriate as it does not met the requirement of deliberative, as it was not the Department writer seeking the Minister to select from an array of choices, but rather seeking the agreement of the Minister with the Department’s recommendation.
As DVA failed to complete this FOI by the statutory due date, this FOI is a deemed refusal.
I would also like to note that, in relation to a previous FOI https://www.righttoknow.org.au/request/a... , where DVA first advised me it had its own UCC policy but would not release it as it was “biennial internal review”, which I pointed out was an invalid exemption ground under the FOI Act, then subsequently went on to state “The Department does not have its own Unreasonable Complainant Conduct” document in response to that (making the earlier claim high farce), I have subsequently had a DVA employee unofficially send me a copy of said document (which has been in existence since 2015), demonstrating that your Information Law area has knowingly made fraudulent representation to me, and breached the FOI Act. Again, this supports that an unethical and unlawful culture exists within the Information Law area of your agency, and that your area routinely breaches its obligations under FOI law. This is, quite frankly, appalling.
Yours sincerely,
Verity Pane
-----Original Message-----
Dear Verity Pane
Please find attached my decision in this matter. The documents in question require further formatting changes to enable provision via email. They will be provided to you as soon as possible.
Kind regards,
Alexander Gent
Legal Officer
Information Law
Legal Services & Assurance Branch
Department of Veterans’ Affairs | www.dva.gov.au ph (02) 6289 6581 | ext 616581 | e [email address]
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #4262 email]
This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/offi...
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
-------------------------------------------------------------------
______________________________________________________________________
IMPORTANT
1. Before opening any attachments, please check for viruses.
2. This e-mail (including any attachments) may contain confidential information
for the intended recipient. If you are not the intended recipient,
please contact the sender and delete all copies of this email.
3. Any views expressed in this e-mail are those of the sender and are not
a statement of Australian Government Policy unless otherwise stated.
4. Electronic addresses published in this email are not conspicuous publications and DVA does not consent to the receipt of commercial electronic messages.
5. To unsubscribe from emails from the Department of Veterans' Affairs (DVA) please go to
http://www.dva.gov.au/contact_us/Pages/f...
, and advise which mailing list you would like to unsubscribe from.
6. Finally, please do not remove this notice.
Dear Alexander Gent,
It beggars belief that of the only 3 full or mostly full pages released (all of which are already in the public domain), against 95 pages either removed or completely or almost completely redacted, DVA couldn’t process and provide those documents within the statutory time frame. This FOI response makes a mockery of FOI laws and process, and has been completely nerfed by the Information Law section of DVA, intentionally. Zero transparency.
Despite the scope of my FOI application, no details on how or why the report was leaked by the Department to the media, before the Bird family had seen the draft copy (and clearly no investigation of that leak) - just a heavy handed redacted and nerfed document on the brief to the Minister to meet the Bird family (and I understand from a journalist contact, certain defamatory comments about Jesse Bird were made in the unredacted draft leaked report, by DVA).
Yet again the Information Law section of DVA demonstrates that they not only sink to the bottom of the barrel on FOI processing, but they’ll punch through to sink to even lower unethical deeps, making a joke of the aims and objects of the FOI Act.
Yours sincerely,
Verity Pane