Dear Australian Digital Health Agency,

From press reporting I understand that the ADHA will not administratively publish the number of opt out applications it has received, until well after the opt out period closes, so it is not possible to administratively request opt out numbers during any period of the opt out period.

However, ADHA clearly is able to rapidly provide the current number of opt out applications received by ADHA, to the Government and its Ministers, as evidenced by Prime Minister Turnbull (who stated on the second day of the opt out period that less than 10,000 people had opted out on the first day of the opt out period, which is information only ADHA could have provided), and other Ministers who have reported on a periodic period that opt outs are trending under certain levels (which, again, can only occur if the ADHA is providing these figures to those Ministers).

It is therefore apparent, that without requiring excessive administrative resources, that the ADHA can rapidly report the number of opt out applications received in any given period, on request from Ministerial staff.

As the ADHA has stated it is not providing any formal reporting on these figures, these figures must be being derived from ad hoc requests to the respective information system managing these opt outs.

I therefore request under s 17 of the Freedom of Information Act that the number of opt outs for “My Health Record” received across the period (inclusive) Monday 16 July 2018 to Friday 27 July 2018 (noting that an FOI does not commence until the day following its transmission to an agency) be complied into a one page document, and released to me.

I note that given the ADHA has released number of opt out information to Government Ministers, cleared for public release, that it cannot be said that such information is sensitive operational information now (it would be different if such information had not be released publicly by Ministers previously during the current opt out period, but this is obviously not the case).

Given the enormous public interest, as evidenced by the amount of media reporting, including Government Ministers making public press briefings on the extent of opt outs currently received, and the fact that it is evident that the ADHA has shown it can provide this information to said Ministers rapidly (the following day, if not quicker), it would be inappropriate to levy charges (because it clearly can be done within the free processing period of FOI).

Yours faithfully,

Verity Pane

Dear ADHA,

I do not consent to my FOI being transferred to another agency.

Yours sincerely,

Verity Pane

Dear ADHA,

Further to my FOI, please note that I do not wish to handle my FOI offline at any point, and intend for it to be handled via Right to Know, given there is no personal information component to this FOI (having the FOI on Right to Know reduces the burden to agencies as it means parties wishing to make similar FOIs may discover their questions have already been asked and answered, avoiding the need for multiple FOIs on the same issue or topic). The only time an FOI made on Right to Know should be answered offline is when someone has mistakenly put in a personal information FOI to an agency (personal information FOIs should not be made via Right to Know).

Also, to confirm, my application was an FOI application (and explicitly one involving s 17), Administrative release is not possible in this instance given the agency’s earlier statements that it would not be administratively releasing opt out numbers until well after the opt out period ceased (which, given recent announcements, may be never, as opt out has been claimed to be able to done at any point in the future in recent Ministerial announcements not yet implemented by the agency).

Kind Regards

Verity

Dear [email address],

The claim that you will not recognise an FOI you have received, unless taken offline from Right to Know, is unlawful and invalid.

You may contact Right to Know to update your preferred contact details from [email address] to [email address] but it is unlawful to insist that FOI applications must be taken offline from Right to Know.

Your response clearly indicates your agency have received and acknowledged the FOI application, and therefore is valid under the Act. Section 15(3) applies - a reasonable step in the circumstances is to update your preferred contact email with Right to Know and internally forward the application to your preferred email. Your actions are otherwise arbitrary and high handed, and contrary to the aims and objects of the Act.

If you do refuse to process the FOI, then this FOI becomes subject to access refusal review rights. Previous ruling indicates adverse funding for you, given this pedantic attitude is contrary to your obligations.

Yours sincerely,

Verity Pane

Dear [email address],

I understand Right to Know has put your preferred FOI email into effect and resubmitted all prior correspondence, therefore as per your response, the original FOI deadline remains intact and the application can not be contested as invalid any further.

Yours sincerely,

Verity Pane

Dear John,

As the opt out data is statistical data, and does not involve personal information as defined by the Act, please advise who is the third party/parties to be consulted.

Yours sincerely,

Verity Pane

Dear John,

Still awaiting a response on who the alleged third party/parties are.

Yours sincerely,

Verity Pane

Dear John,

Given the failure of the ADHA to specify who the third party/ies are to be consulted, and noting that it appears that the only parties who would reasonably be inferred as having any connection to this statistical operational information collected by ADHA would be other Commonwealth agencies (who are not third parties and to whom third party consultation cannot be claimed for), I am considering a s 70 complaints about your agency’s conduct, which appears to be in flagrant breach of the Act.

An agency or minister may only claim a consultation of a third party is required where documents subject to the FOI application could reasonably affect Commonwealth-State relations (s 26A) or Norfolk Island intergovernmental relations (s 26AA), are business documents (s 27) or are documents affecting another person’s privacy (s 27A).

It is readily apparent that that this statistical operational information does not fall into any of these categories (business documents do not include documents of an agency), and given that the ADHA will not respond to requests for the name or type of third party/it’s being allegedly consulted, that a sham to unethically delay the statutory deadline is likely to be in effect (otherwise there would be no reason not to identity the type of third party to be consulted).

If I have not heard from you within the next couple of days, I will go ahead and raise the s 70 complaint (notably, unlike an IC Review, s 70 complaints do not effect the statutory deadline in any way).

Sincerely

Verity

Dear Australian Digital Health Agency,

As your agency failed to identity a valid third party consultation ground, despite repeated follow up, where documents subject to the FOI application could be reasonably said to affect Commonwealth-State relations (s 26A) or Norfolk Island intergovernmental relations (s 26AA), are third party commercial in confidence business documents (s 27) or are documents affecting another person’s privacy (s 27A), the consultation notice was invalid and therefore had no effect at all, the original statutory decision period applied.

As a result this FOI has now received a deemed refusal response, having fallen due on Monday 27 August 2018.

DEEMED REFUSAL

The obligation on an agency or minister to notify an applicant that a request has been received, and to make and notify a decision on the request within the statutory timeframe, commences upon receipt of a request that meets the formal requirements in ss 15(2),(2A).

Your agency has failed to do so.

An agency or minister must, as soon as practicable, and within 14 days of receiving a request, take all reasonable steps to enable the applicant to be notified that the request has been received (s 15(5)(a)). This requirement will be met by sending a notice of receipt to the contact address provided by the applicant. The 14-day timeframe commences on the day after the request is received by or on behalf of an agency or minister’s office.

That FOI acknowledgement occurred on 27 July 2018, although your agency subsequently sought to retrospectively relinquish that acknowledgement on 10 August 2018, and demanded it be sent to another email address other than the one ADHA provided to Right to Know, although stating that “the Agency will acknowledge the original request date of 27 July 2018 if you promptly send your FOI request to the email address specified by the Agency”. The original FOI emails were re-sent to new email address demanded for them to be sent on the same day. The valid FOI remained with the same date it was sent to your agency, which was 27 July 2018.

Similarly, an agency or minister must, as soon as practicable, and no later than 30 days after receiving a request, take all reasonable steps to enable the applicant to be notified of a decision on the request (s 15(5)(b)). Section 15(5)(b) provides that the 30-day processing period commences on the day after the day the agency or minister is taken to have received a request that meets the formal requirements of s s15(2), (2A).

That statutory date expired therefore expired on Monday 27 August 2018, as despite correspondence claiming third party consultation, such notice was invalid as it failed to identify the statutory ground required for s 27 to apply, and repeated attempts to get your agency to specify a required ground has been ignored by your agency.

A ‘deemed refusal’ occurs if the time for making a decision on a request for access to a document has expired and an applicant has not been given a notice of decision. If this occurs, the principal officer of the agency or the minister is taken to have personally made a decision refusing to give access to the document on the last day of the ‘initial decision’ period (s 15AC). A notice of the deemed decision is taken to have been given on the last day of the decision period.

The consequence of a deemed refusal is that an applicant may apply for IC review (s 54L(2)(a)). An applicant or third party can also apply for IC review of a deemed affirmation of a decision on internal review (ss 54L(2)(b), 54M(2)(b)). In addition, once the time has expired and there is a deemed decision, the agency or minister cannot impose a charge for access.

Where an access refusal decision is deemed to have been made before a substantive decision is made, the agency or minister continues to have an obligation to provide a statement of reasons on the FOI request. This obligation to provide a statement of reasons on the FOI request continues until any IC review of the deemed decision is finalised. The competing view — that a decision maker is functus officio if a deemed decision arises — would have the consequence that an applicant’s right of access under the FOI Act would be impeded through delay on an agency’s part and could only be revived by an application for IC review. This result would be contrary to the objectives and requirements of the FOI Act.

Yours sincerely,

Verity Pane

Dear Ms Bettina McMahon,

It’s hard to know where to start with this FOI decision, which deserves upmost criticism.

Firstly, as suspected and now confirmed, the Australian Digital Health Agency fraudulently and knowingly, did unlawfully and therefore invalidly, claim a 30 day extension that had no legislative basis.

Only s 26A, 27 or 27A consultations can extend the statutory processing time established by s 15(5)(b).

s 26A only applies to consultations between Commonwealth and State or Territory entities, which did not apply here.

s 27 only applies to consultations between Commonwealth agencies and external commercial third parties, with respect to documents that may contain sensitive information concerning the business, commercial or financial affairs of a commercial organisation, or a private individual’s business or professional affairs. It does not apply to consultations betweenCommonwealth agencies, as they are not external parties and Commonwealth records are not commercial business documents.

s 27A only applies to consultations with private individuals (and explicitly not public servants carrying out their official duties as this is not personal information but the activity of their agency) where documents in scope may affect their personal privacy.

The document released, which was irrelevant to the scope of the s 17 FOI request made, appears to be an email from a Department Liaison Officer at Centrelink with a draft of talking points for opt outs received on the first day of the My Health Record opt out period.

As a document that raises no s 26A, s 27 or s 27A grounds, the Australian Digital Health Agency had no power under the Freedom of Information Act 1982 to extend the 30 day statutory deadline that applied under s 15(5)(b). The ADHA appeared to be aware it has fraudulently claimed an extension it had no power to make, in that it refused to identify the consultation party or even the consultation section under which it claimed extension, despite repeated requests for it to do so.

As such, given I correctly raised with the ADHA that this decision became a deemed refusal following the ADHA’s breach of s 15(5)(b) on Monday 27 August 2018, when the 30 day statutory processing period expired and the ADHA failed to provide an FOI decision at that time.

Secondly, as raised, the decision given, despite correctly stating the FOI scope, went on to completely ignore it and the statutory obligations under s 17, to make a decision on a document irrelevant to the scope, which the ADHA would be and is well aware of.

As the ADHA has shown no intention to act honestly or ethically, and given the deemed refusal, this will now proceed as IC Review.

Yours sincerely,

Verity Pane

To the ADHA,

Given the fraudulent abuse of self granted extension by your agency, that was ultra vires given it did not satisfy either s 26A, s 27 or s 27A, I have referred that specific abuse of process to the OAIC under s 70 of the FOI Act.

It is clear that the ADHA are knowingly and wilfully abusing FOI process, to fraudulently push the legally enforceable right to access, until after the opt out period closes, despite the ADHA having no statutory power to so enforce and deny FOI’s legally enforceable right to access.

It seems the system operator of My Health Record is corrupt and unethical, which seems a very good reason just on its own to opt out, before even looking at the bin fire called My Health Record (another white elephant government IT project that scammer consultants shop country to country, leaving chaos in its wake - after the failed UK Care.data, which is what My Health Record is really a rebadged version of, prompted by the same con merchant, we should have avoided like the plague).

Yours sincerely,

Verity Pane

From: Verity Pane
Sent: Wednesday, September 26, 2018 1:04 pm
To: [email address]
Subject: s 70 FOI Act Referral - ADHA FOI 1807018 - agency self granted extension outside of s 26A, 27 and 27A - ultra vires

Dear OAIC,

Under s 70 of the FOI Act I refer this ADHA FOI 1807018, the details of which are at https://www.righttoknow.org.au/request/o... , for the practice of the ADHA granting itself extensions to the s 15(5)(b) statutory processing period, that are outside the only valid extension provisions of s 26A, s 27 or s 27A.

The specific details are provided in my correspondence to the ADHA below.

It should be noted that the ADHA has been publicly stating that it will not be releasing opt out numbers publicly until after the opt out period is completed, despite that it has no legal basis to enforce that. To reinforce that, I applied under FOI for the opt out numbers for the first two weeks, under s 17 of the Act explicitly, given I know from whistleblower disclosures that the ADHA has been compiling these opt out numbers internally and storing them digitally, but has only been producing the numbers ad hoc internally and to various Ministerial staff.

FOI gives a legally enforceable right for members of the public to obtain documents, and s 17 of the Act in particular compels agencies to compile a document if it can reasonably do so from digital records/information systems it holds/manages (and it is clear the ADHA can reasonably produce these reports on demand, it’s just that it wants to prevent the public alone from accessing them).

The ADHA have therefore been intentionally stalling and delaying this FOI so as to prevent access until after the opt out period has finished, because it does not want the number of current opt outs to influence opt out behaviour (nor for earlier statements of the Ministers involved to be contradicted, and claims of fraud to be made).

As part of that intentional action to cause fraudulent delay by the ADHA to this FOI, the ADHA made an invalid extension to this FOI.

It refused, by silence despite repeated explicit request, to identity the basis of the extension nor the name or type of third party involved.

It has subsequently been identified by a long overdue decision (which was also fraudulently handled, as the ADHA ignored both the scope and s 17 components and released irrelevant material in lieu) that there was no valid extension ground, as neither ss 26A, 27, or 27A were satisfied.

This was an outrageous abuse of process by the ADHA and because the extension was invalid and ultra vires, the FOI became a deemed refusal decision 30 days after it was made.

From: Verity Pane

September 21, 2018

Dear Ms Bettina McMahon,

It’s hard to know where to start with this FOI decision, which deserves upmost criticism.
Firstly, as suspected and now confirmed, the Australian Digital Health Agency fraudulently and knowingly, did unlawfully and therefore invalidly, claim a 30 day extension that had no legislative basis.

Only s 26A, 27 or 27A consultations can extend the statutory processing time established by s 15(5)(b).

s 26A only applies to consultations between Commonwealth and State or Territory entities, which did not apply here.

s 27 only applies to consultations between Commonwealth agencies and external commercial third parties, with respect to documents that may contain sensitive information concerning the business, commercial or financial affairs of a commercial organisation, or a private individual’s business or professional affairs. It does not apply to consultations betweenCommonwealth agencies, as they are not external parties and Commonwealth records are not commercial business documents.

s 27A only applies to consultations with private individuals (and explicitly not public servants carrying out their official duties as this is not personal information but the activity of their agency) where documents in scope may affect their personal privacy.

The document released, which was irrelevant to the scope of the s 17 FOI request made, appears to be an email from a Department Liaison Officer at Centrelink with a draft of talking points for opt outs received on the first day of the My Health Record opt out period.

As a document that raises no s 26A, s 27 or s 27A grounds, the Australian Digital Health Agency had no power under the Freedom of Information Act 1982 to extend the 30 day statutory deadline that applied under s 15(5)(b). The ADHA appeared to be aware it has fraudulently claimed an extension it had no power to make, in that it refused to identify the consultation party or even the consultation section under which it claimed extension, despite repeated requests for it to do so.

As such, given I correctly raised with the ADHA that this decision became a deemed refusal following the ADHA’s breach of s 15(5)(b) on Monday 27 August 2018, when the 30 day statutory processing period expired and the ADHA failed to provide an FOI decision at that time.

Secondly, as raised, the decision given, despite correctly stating the FOI scope, went on to completely ignore it and the statutory obligations under s 17, to make a decision on a document irrelevant to the scope, which the ADHA would be and is well aware of.

As the ADHA has shown no intention to act honestly or ethically, and given the deemed refusal, this will now proceed as IC Review.

Yours sincerely,

Verity Pane

Dear Sean Giddings,

An advisory.

You’ve replied to the wrong FOI.

The FOI you needed to reply to is the one made on 13 August 2018, which the ADHA ignored, and which went deemed refusal on 12 September 2018, and is currently 81 days outstanding.

Instead you have replied to the FOI made to the ADHA on 27 July 2018, which the ADHA ignored until putting in a bogus third party notice to unlawfully consult itself on the last working day before decision was due, and therefore went deemed refusal on 27 August 2018, and then got a bogus decision notice on 21 September 2018 that had nothing to do with the actual FOI scope, and therefore is still 98 days outstanding for a valid decision notice.

Given the gross bad faith and deeply unethical conduct shown by ADHA employees, that violated the requirements of the FOI Act, I’ll take your notification of ongoing delay for this long outstanding FOI with the massive salt block it requires. This corrupt behaviour highlights that the ADHA cannot be trusted, let alone relied on, by Australians as you are an opaque, unaccountable and arrogant entity who considers themselves above the law.

Yours sincerely,

Verity Pane