Dear Department of Veterans' Affairs,

Under s 17 of the FOI Act, I seek that you compile a position report from your agency’s Human Resource Management Information System (HRMIS/HRMS), for the whole of the Legal Services & Assurance Branch of DVA, as of today (or any date up to decision issue - your choice).

A position report is a standard template report in any HRMIS/HRMS (and DVA have one), which lists all positions (whether vacant or filled) within a section, area, unit up to and including the whole Department, including who occupies that position (if anyone), and who that position directly reports to.

Oracle, for example, calls this assignment data or reporting organisation data. SAP refers to it as the organisational tree and position data. But it’s all the same, and producing a position report for any part of that organisational tree and it’s sub-units or dependants is a standard template report that takes only a few minutes to request.

Yours faithfully,

Verity Pane

Attn DVA,

I modify my scope, in so far as that if the Legal Services & Assurance part of DVA is referred to by something than the Legal Services & Assuranve Branch (such as Division, Group, etc). that reference will be taken to refer to that part of the organisation, regardless of its actual description.

Just to prevent you engaging in further nonsensical game playing.

With respect to the names of position occupants I provide the following:

As explained in the Guidelines, personal information can include a person’s name, however, for information to constitute personal information it needs to convey or say something about a person, rather than just identify them.

As stated in Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429 by Heerey J, it is only if ‘the information disclosure were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed... [that] disclosure would be unreasonable’.

It has been consistently held by the AAT and the Federal Court that there is a greater public interest in demonstrating transparency and accountability in official records, extending to the identity of those public servants who authored them and made decisions based on them, unless limited special circumstances apply.

This is important in a democratic government as transparency and accountability ward off corruption and ethical abuses.

Recognised in both Federal Court and AAT cases and the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act, is ‘it is not unreasonable to disclose information about an individual public servant’s work related activities in his or her agency, such as the person’s name, or the manner in which the person carries out tasks or behaviour in the workplace’.

While disclosure of a public servant’s home address and other private personal information, such as date of birth details etc, would be unreasonable, details of work telephone number, email address and place of work, especially if already known, are not.

However, I have no interest in telephone numbers or email addresses or desk locations etc (so they may be redacted with consent), beyond the full name of the position occupant, as that is all that is reasonably necessary for accountability purposes and to check only those persons with the authority/delegation to do things, did them in reference to other documents (where applicable).

Empty claims of potential prejudice to operations must be assessed against the significant abilities of agencies to restrict and channel communications that occur outside of approved channels, such as restricting and redirecting communications via email server rules or PABX rules or using SPOC requirements, as well as the likelihood of such a risk (statistically the evidence is such risks are very low and quite uncommon). The situation is such that any potential prejudice likely to occur can be managed adequately with minimal effort by agencies, and indeed agencies have access to both legal and procedural measures to remedy any issues that may arise.

As held by the Full Tribunal in Williams, ‘personal affairs’ is construed narrowly. Beaumont J, in reasons agreed to by Senior Member McMahon and Member Renouf, held that ‘personal affairs’ refers to ‘matters of private concern to an individual’. His Honour’s view was that the phrase does not ordinarily include information about a public servant’s activity in their official duties. Something which gives only the ‘bare names’ of a public servant in official records was not a personal affair, unless it also included details such as their home address, age, marital status, children and salary (which would fall into personal affairs).

The Full Federal Court in Dyrenfurth, similarly, agreed that personal affairs’ refers to matters of ‘private concern’, not official information (and the name of a public servant recorded in an official document in the course of carrying out their official duties is clearly official information).

Re Marr and Telstra Corp Ltd [1993] AATA 328 commented that there was little practical difference between the terms ‘personal information about’ and ‘personal affairs of’, and that neither extended to the mere mention of officers’ names in an agency document. Re Subramanian and Refugee Review Tribunal [1997] AATA 31 at [42]-[43] said it was significant that the word ‘personal’ was still part of the personal privacy exemption, which indicated that it applied only to ‘information which concerns or affects a person as an individual’ and does not include ‘information relating to a person’s conduct in a work environment’. Three other decisions holding that work-related information was not personal information were Re Cook and Comcare [1996] AATA 95 at [34] (the names of agency officers who were informants about workplace conditions); Re Lalogianni and Australian National University [2001] AATA 347 at [34]-[43] (internal correspondence written by two University academics concerning a complaint against one of them); and Re Einfeld and Human Rights and Equal Opportunity Commission [2009] AATA 414 at [52] (a document seeking ministerial approval for overseas travel by a named statutory officer).

As has been stated by the Information Commissioner previously:
Two other suggested limitations on the phrase ‘personal information’ should also be noted. One is that information is only ‘about an individual’ (as required by s 4(1) of the FOI Act) if it says something about the individual. The other is that a person’s name is not of itself personal information.

Public servants are well aware that because, as part of their official duties, their names are recorded on both internal and external correspondence and documents, and that these records may be retained and indeed released to the world at large, without their explicit consent being required to do so, as disclosures may be required or authorised at law, provided for a directly relevant or even associated purpose, or given under a range of other circumstances (such as release by Archives for example). No existence of confidentiality of such details can be reasonably presumed, and indeed the Public Service Act includes requirements of being accountable and demonstrating transparency in their decision making at work, which includes identifying who they are in official correspondence and other agency documents.

It should be noted that the names of public servants are routinely published to the world at large, through the Australian Public Service Gazette or other publications, such that anyone can spend time identifying even junior employees in agencies, including their current job title and office location, often even their phone numbers (if they are a contact officer at some point).

There is, in fact, no confidentiality in existence over such details, apart from those public servants that have covert duties or whose details have been withheld due to them having a DVO extant, who are accorded exemptions from such publication in the gazette and the like (if a public servant has been promoted or transferred on secondment into their position, their name and the link to that position has already been published to the world unless this applies).

The Gazette includes notices of examination, APS employment opportunities, APS staff movements, promotions and terminations of employment, as well as employment opportunities and staff movements in the Parliamentary Service, so reaches every corner of the APS. It is rare for the names of public servants to be withheld in that publication (again, only on the covert or DVO grounds). Anyone wanting to jump usual channels of communication already has access to all they need, just by searching through the Gazette looking for the relevant positions and identifying the full names of the officers that way.

I do not consent to the redaction of official information, including the names of public servants carrying out their official duties, as would be displayed in an position report (unless they have covert duties or an AVO applying to them).

Ms Pane

Attn Position Number 62210022, Assistant Director, Information Law Section

For once, this charges notice (made without a prior preliminary charges estimate) is not actually wildly overblown and grossly inflated like those received over the last few days from DVA. Is this a sign the cleaning of house over at DVA Information Law is more than tokenistic?

I welcome this change on levying ridiculous amounts by your Department.

While the charges levy is still on the high side, it is tolerable.

However, the issue now is the levy charge is too low to justify it’s collection, especially given DVA only accept cheques (which is unlike other agencies that provide more payment options) and while the prevailance of personal cheques in the the 1960s-1980s was common, it is now almost non-existent, having declined rapidly since then (with News.com article ‘Cheques tipped to disappear entirely in Australia by the end of 2019’ forecasting its death knell).

The bank fee to create a CBA bank cheque to pay the deposit is practically the same as the deposit amount, let alone the costs the CBA charges to send the cheque to DVA, which put the total costs of handling well above the deposit amount (effectively making the real cost much higher to the applicant).

This pushes the not intolerable total charges levy of $48.85 into the uneconomical to levy and collect category, which the Information Commissioner has ruled is when such charges should be waived in order to comply with the aims and objects of the FOI Act to provide access at the lowest cost possible.

DVA is aware of this already of course, just as it is aware, than by not issuing a preliminary estimate first under Reg 9, it forces the s 15(5)(b) processing clock to be stopped if any issue arises about the charges levied by the delegate.

As discussed in the FOI Guidelines and in IC review cases, s 29 of the FOI Act provides for charges to be imposed in respect of FOI requests and the process by which they are assessed, notified and adjusted.

Where an agency or Minister decides than an applicant is liable to pay a charge in respect of a request for access to documents, a preliminary assessment of the amount of the charge is made and the agency or Minister must give the applicant a written notice (a charges notice) in accordance with s 29(1) of the FOI Act.

The applicant may then contend that the charge has been wrongly assessed, or should be reduced or not imposed (s 29(1)(f)(ii)). The agency must then decide whether to reduce or not impose the charge (ss 29(4)-(5)).

However, you have skipped ahead and imposed a charges levy notice without giving any preliminary notice, so as to make it required that either a tokenistic charge that costs almost as much to arrange as it is to pay is required, or force the stopping of the s 15(5)(b) processing deadline to intentionally cause interference with a reasonable right to access.

Section 29(1)(f) of the FOI Act obliges an applicant to take one of the following actions in response to the charges notice:
* agree to pay the charge (s 29(1)(f)(i))
* contend that the charge has been wrongly assessed, or should be reduced or not imposed (s 29(1)(f)(ii)), or
* withdraw the request for access to the document concerned (s 29(1)(f)(iii)).

If the applicant fails to take any of these actions, the applicant is taken to have withdrawn the request for access to the document concerned (s 29(2)).

If the applicant notifies the agency or Minister of their agreement to pay the charge, and pays the charge or a deposit on the charge, the Department must continue to process the request for access to the document concerned.

However, if an applicant responds to the charges notice contending that the charge should be reduced or not imposed, the agency or minister can stop processing of the request until the matter is resolved, which yet again is the unscrupulous and unethical tactic you are deploying.

The FOI Guidelines explain that the decision to impose a charge is discretionary. A charge should be accurate, should fairly reflect the work involved in providing access to documents on request and must not be used to unnecessarily delay access or discourage an applicant from exercising the right of access conferred by the FOI Act.

The FOI Guidelines further explain that in exercising the discretion to impose a charge, an agency should take into account the ‘lowest reasonable cost objective’ in s 3(4) of the FOI Act, which provides that ‘functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost’. The FOI Guidelines relevantly explain:

Agencies and ministers should interpret the ‘lowest reasonable cost’ objective broadly in imposing any charges under the FOI Act. That is, an agency or minister should have regard to the lowest reasonable cost to the applicant, to the agency or minister, and the Commonwealth as a whole. Where the cost of calculating and collecting a charge might exceed the cost to the agency to process the request, it would generally be more appropriate not to impose a charge ...

As per the reasoning of the Information Commissioner in 'ND' and Department of Human Services (Freedom of Information) [2017] AICmr 119 (20 November 2017), the charges notice should be withdrawn (especially since DVA have already foreshadowed they have no real intention of providing access, again highlighting that the sole intent is to cause further delay). The levied amount falls within the range previously identified by the Information Commissioner as uneconomical to levy.

Ms Pane

Dear Leia,

Re: FOI 25080 s 55G

On 27 September 2018 this FOI request was received by the Department.

On 25 October 2018 this FOI request received a charges notice of $48.68, which was below the level the OAIC Information Commissioner has previously, on multiple occasions, declared was uneconomical to collect as the costs of seeking it far exceeds the costs collected, and therefore it was inappropriate for FOI entities to levy such ‘artificial barrier to access’ amounts. This charge notice was therefore challenged on this and other secondary reasons, especially given the Department routinely charges all processing such as this at EL1 Assistant Director/Senior Legal Adviser Legal Officer rates (seeing charges of over $200 for even simple and discrete tasks, for work that could and is required by the Act to be performed by more junior staff who are quite capable of tabulating simple data, at the lowest possible cost).

On 23 November 2018 the Department ignored these valid objections and simply restated the original charges given notice of, as a charges decision. IC Review was applied for the same day due to the Department ignoring these valid objections to the improperly calculated charges.

Now, today, some 246 days after this very simple FOI request for a standard position report from your Human Resource Information Management System (HRIMS) was sought, this s 55G revised decision has been made by the Department, over 8 months since the FOI was first processed (poorly) by your Department.

It is therefore disappointing, especially since you wrote the charges decision that you have issued this s 55G substitution for (unconventional given this is supposed to be carried out by an officer not involved in the original decision), that despite having eight months to prepare, the decision letter issued today is poorly written.

Paragraph 2 states

I have made a decision to vary the original decision I made on 23 November 2018 to apply charges in the amount of $48.68 to process your FOI request.

Paragraph 7 states

On 25 October 2018, the Department provided you with a Charges Notice, advising of a preliminary assessment of charges for processing your request in the amount of $48.68. You were also advised that a deposit of $20.00 was required before any further action could be taken on your request.

Paragraph 12 states

I have made a decision to vary the original decision I made on 23 November 2018 to apply charges in the amount of $48.68 to process your FOI request.

Paragraph 2, which is essentially in the executive summary section, should have stated the actual decision made, but instead lacks clarity and omits what is the substitution.

I recommend, to improve the readability of such correspondence in future, you correctly and concisely summarise the decision conclusion in full in future, for the paragraph 2 executive summary.

I note that the Department has previously stated that the names of SES level officers would not be redacted (but note the Department has been inconsistent previously with its own policy here, on the other matter of that it would not redact position titles, which it did for a prolonged period). However it has redacted an entry for the SES officer here.

If the Department removes Mr Babbington’s redaction, so that it remains consistent with its own policy, that would resolve the issue.

Yours sincerely,

Verity Pane

Dear INFORMATION.LAW,

Regarding the feedback, as the Public Service Commission’s Effective Writing course used to say, ‘Don’t bury the lead’. You should look at the Information Commissioner’s FOI review decisions for the advantages of avoiding writing that lacks concise efficient and effective summaries. As you can see from her latest FOI decision it is a clear, unambiguous and accurate precis from paragraph 1.

http://www.austlii.edu.au/cgi-bin/viewdo...

Decision

Paragraph 1 - Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of the Department of Foreign Affairs and Trade (the Department) of 26 October 2016. I substitute my decision that the attachments within the documents which the Department no longer contends are exempt, are not exempt.

Paragraph 2 - I affirm the remainder of the Department’s decision under s 34(1)(c).

Paragraph 3 - The Department must now give the applicant a copy of the material which is not exempt within 28 days of this decision.

The Department will only benefit from improving the dire quality of its template letters, so its in your own interest, but I note the Department does like digging its own trenches, so it was intended as feedback, not a request for a replacement letter.

It’s just the inconsistency with your own policy on SES staff that has to be dealt with (I recall there were also issues previously, where contrary to a statement to Senate Estimates by the Department, the Department was issuing letters with only position numbers for a time - as feedback, I recommend that the Department’s legal staff at least should be properly aware and consistent with, the guarantees given by the Department to the Senate Estimates committee as to the minimum transparency standards it agreed to adhere to).

Yours sincerely,

Verity Pane

Dear INFORMATION.LAW,

After 8 months and 15 days, DVA finally provides what it was always minimally required to under the Freedom of Information Act. In keeping with that, you took a month to correct your error in redacting SES names, contrary to requirements, but we are finally here.

Is it any wonder that the negative news coverage about DVA, particularly about DVA’s organisational culture, is yet again prominent (and unfortunately for the same old issues that are endemic to DVA).

Yours sincerely,

Verity Pane