Dear Australian Energy Regulator,

I seek access under FOI to documents referred to in an article published in the The Sunday Mail (Qld) on January 22, 2017 and apparently already released under FOI. I have set out the text of the published article below.

Some of the disclosed documents are Australian Energy Regulator documents and it seems likely that disclosure of those documents was made by the Australian Energy Regulator. In the published article reference is made to emails apparently generated within the Australian Energy Regulator. A search of the Australian Energy Regulator website ( www.aer.gov.au ) did not reveal a disclosure log required under FOI legislation. There appears to be no information about FOI procedures or the Australian Energy Regulator obligations under FOI legislation on its website.

The Powerlink disclosure log does not refer to the documents mentioned in the articles as being disclosed under Right to Information (QLD). https://www.powerlink.com.au/About_Power...

Published material:

Electricity monopoly Powerlink lobbies to have strong consumer advocate dumped from government advisory panel
Kelmeny Fraser, The Sunday Mail (Qld)
January 22, 2017 12:00am
Subscriber only

STATE-OWNED electricity monopoly Powerlink lobbied to have an industry expert fighting to slash consumers’ skyrocketing bills dumped from a government advisory panel.

Emails obtained by The Sunday Mail under Right to Information reveal Powerlink boss Merryn York personally lobbied the Australian Energy Regulator to axe expert Hugh Grant from an independent consumer panel assessing its latest revenue bid, sparking a two-week review despite no written complaint from Powerlink.

Electrical engineering graduate Hugh Grant was appointed to give consumers a voice in how much revenue networks could recoup via household power bills.

Mr Grant had gained a reputation as a tough consumer advocate while assessing Powerlink’s spending plans up to 2022.

The electrical engineering graduate was chosen to serve on the regulator’s consumer challenge panel when it was launched in 2013 to give consumers a voice in decisions on how much revenue the networks are allowed to recoup via householders’ power bills.

Mr Grant was put on a sub-panel reviewing Powerlink’s revenue bid because of his experience in the state’s transmission network.

Ms York complained about his appointment during a “meet and greet” with AER chairwoman Paula Conboy in March 2015.

Ms Conboy wrote of the meeting in an email raising concerns about a “conflict of interest and perception of bias” because he had worked for Powerlink up until 2009.
“Powerlink is not comfortable … and I have to admit, neither am I,” she says in the email. “Hugh Grant (as you may know) is a former employee of Powerlink and is quite scathing of the company. I would rather not have him assigned to that subgroup.”

AER chief executive Michelle Groves later emailed that Powerlink was “unhappy” and “want a different panel”.

“Paula [Conboy] seems sympathetic to their position. Can we discuss how we can manage Hugh off and someone else on?”

Mr Grant responded to concerns by reminding the AER its own lawyer had cleared him of a conflict of interest 19 months earlier.

“Powerlink’s reason for requesting my removal from the panel has nothing to do with conflict of interest,” he wrote.

“They want me removed because they know that I will subject their revenue proposal to some robust challenges — challenges that they want to avoid at all costs.” He warned it would signal the networks can dictate who is allowed to assess their proposals.

The AER later wrote to Ms York to reject “an actual conflict of interest” existed.
“Hugh worked for Powerlink seven years ago and left on amicable terms,” it wrote.

An AER spokesman yesterday said it always took conflict of interest concerns seriously.

Ms York said the AER’s guidelines state potential conflicts of interest should be reported. Mr Grant declined to comment.

Yours faithfully,

JS

Dear FOI,

Thank you for your letter in which you confirm that the ACCC released the documents mentioned in an article published in the The Sunday Mail (Qld) on January 22, 2017. Relevant third parties in that matter were aware of the identity of the applicant and had no objection to the documents being released. The documents were not published in the ACCC disclosure log because the ACCC considered it unreasonable to do so. Consequently, the documents are not available for immediate release to subsequent FOI applicants. Further consultation is necessary in respect of my FOI application.

The ACCC has decided to impose a charge of $82.30 to process my request. It seems the estimated charge has been substantially reduced in anticipation of expected efficiencies in processing this subsequent FOI application. The $82.30 estimated fee is based on the ACCC taking approximately 2 hours to find the documents and 7 hours to examine the documents and make a decision. Approximately 18 documents were released and the estimated decision making time is significant as 4 third parties need to be consulted.

The content of your letter is not consistent with the following statement that is published on the ACCC website “ Freedom of Information Act 1982 all documents released in response to FOI requests, made on or after 1 May 2011, are now available for download.”

I consider that 2 hours approximately to locate the documents is excessive. The circumstances suggest that the documents are in fact readily available within minutes rather than hours.

The Australian Energy Regulator (AER) is Australia’s national energy market regulator. As part of its Better Regulation Reform package the AER recognised the important underpinning to its regulatory approach of a strong consumer engagement framework As part of this framework the AER established a Consumer Challenge Panel (CCP) in 2013Th CCP is a panel of experts — each appointed in their individual capacity - who sit within the AER. The objective of the CCP is to assist the AER make better regulatory determinations by CCP members advising us on issues that are important to consumers.

The published article indicates that most if not all of the documents are AER documents created by both the Chair and CEO of the AER as well as a member of the CCP as part of a review of the appointment of a CCP member to a particular role. Powerlink who raised the issue with the AER did not make a written complaint it appears but it may have received a letter from the AER. Importantly those parties have already given consideration as to whether they had an objection to release of the documents. With that background further consultation should be of very short duration. I consider that consultation and decision by the authorised officer should be achieved easily within 5 hours. I contend that the documents are to hand and any further work can be achieved within five hours such that charges are not applicable.

There is a public interest in the release of the documents. Nous Group was commissioned by the AER to conduct an independent review of the CCP. The review recommended that the AER should actively manage perceptions of bias or conflicts of interest to ensure they do not undermine the value of the CCP.

The documents relate to an agency conduct that has been a topic of public interest or discussion, and disclosure of the documents would better inform the public as to why or how the decisions were made, including highlighting problems or issues that occurred in the decision-making process. Release of the documents would add to the public record on an important and recurring aspect of agency decision making.

Yours sincerely,

JS

Dear FOI,

Thank you for your revised cost estimate.

The ACCC doubts my claim that the statement, “Freedom of Information Act 1982 all documents released in response to FOI requests, made on or after 1 May 2011, are now available for download.” is published on the ACCC FOI website. My claim is correct because I rely not on my memory that may be fallible for a variety of reasons but on the continued publication of the statement. A search of Pandora/Trove, Australia's Web Archive, reveals that the statement was published on the ACCC FOI website as far back as 21 Sept 2011. The ACCC should reflect on its strange and disquieting conclusion about what is published on its FOI website.

Given the continued publication of the statement, “Freedom of Information Act 1982 all documents released in response to FOI requests, made on or after 1 May 2011, are now available for download” the ACCC should make the documents I seek available for download. After all the documents – 18 in total - were released by the ACCC in response to an FOI request and the ACCC has and continues to inform the world at large that those documents are available for download.

In the unlikely event that the ACCC continues to renege on its promise published on its website then I query the assessment of the charge and further submit that the charge should be waived and the documents released in the public interest.

The 18 documents were released under FOI. A schedule or schedules would have been created for the purpose of the FOI release and for the purpose of recording the decisions that it was unreasonable to publish in the ACCC disclosure log all of the information contained in each of the 18 documents. With the documents to hand and several schedules already created the revised estimate for copying electronic documents and creating electronic schedules is untenable on any measure.

The AER's work helps ensure the integrity of energy markets, so that consumers can trust that they are receiving a service that meets their needs and are paying no more than necessary. In July 2013 the AER announced its inaugural Consumer Challenge Panel (CCP) for a term of 3 years. The role of the CCP is to assist the AER make better regulatory determinations by providing input on issues of importance to consumers. For each regulatory determination, the AER drew together a number of the CCP members (from the 13 members of whom only 12 are now clearly listed on the AER website) to provide advice on that particular determination. Overall, around $2 million was allocated to support the technical advisors and consumer advocates from 2013 to 2016.

In Sept 2016 the 11 members of the second iteration of the CCP were appointed, again for a term of 3 years. Remarkably, on the AER website there are 2 submissions (dated 21/12/2016 & 23/12/2016) responding to a revised proposal dated 1 Dec 2016 from a regulated trader. Both submissions are claimed to be from CCP members yet both authors are not included in the membership list of the CCP appointed in Sept 2016.

In the CCP Member Biographies published on the AER website in 2014 the following information was included in the entry for a CCP member:
“…has extensive experience in the energy industry in Europe and Australia. This included performing the role of Operations Business Unit Manager with Powerlink Queensland, with responsibility for the operations of the Queensland electricity transmission network.”

Emails obtained by The Sunday Mail under Right to Information reveal Powerlink boss Merryn York personally lobbied the Australian Energy Regulator to axe expert Hugh Grant from an independent consumer panel assessing its latest revenue bid, sparking a two-week review despite no written complaint from Powerlink. Ms York complained about his appointment during a “meet and greet” with AER chairwoman Paula Conboy in March 2015. Further details contained in the published article are included in my FOI application.

By July 2015 the content of the Biography of the CCP member published on the AER website no longer contained a reference to his role with Powerlink.

The charge should be waived and the documents released in the public interest. There is a general public interest in allowing access to information under the FOI Act and in facilitating and promoting public access to information, promptly and at the lowest reasonable cost. The objects of the Act include promoting better informed decision making, and increasing scrutiny, discussion, comment and review of AER activities. There is a public interest in the public having confidence and trust in the independence of the AER and its decisions. It is fundamental that the AER be free from interference from the sector being regulated or other vested interests and it is in the public interest that that can be demonstrated.

The subject matter of the documents deals with issues concerning the protection of consumer interests by way of the CCP, AER administration, conflict of interest and an approach by regulated trader and the AER response. All issues of public importance and underpinned by public expenditure. Release of the documents would illustrate how the AER is accountable for the way it operates, its decisions are open to scrutiny, and it can be trusted to do the right thing in circumstances calling on its ability to identify and appropriately manage any perceived or actual conflicts of interest in line with its published procedures.

I have no commercial interest in the release of the documents and I have no connection with any regulated trader – other than as a consumer of expensive energy for personal use – or with any of the CCP members appointed in 2013 or 2016.

Yours sincerely,

JS

Dear FOI,

Thank you for your letter of July 7 in which you tell me that :

[“ Your request covers documents that contain information about a business or individual. The ACCC is required to consult with these businesses or private individuals before making a decision on the release of these documents.

To allow time for consultation, l have determined, in accordance with subs.15(6), that it is appropriate to extend the statutory time limit for processing your request to 60 days.

Please advise whether you are agreeable to the ACCC notifying third parties of your identity, as that question is frequently asked of the ACCC when consulting.”]

I calculate that the effect of your determination is that the statutory time limit due to expire on 11 July 2017 has been extended by 30 days i.e. 10 Aug 2017. My calculation is based on the following references:

On 9 Mar 2017 I made an FOI application to the AER for documents previously released under FOI. On 17 Mar 2017 the ACCC acknowledged the request – the ACCC had released the relevant documents.

On 21 Mar the ACCC decided to impose a charge of $82.30 based on the ACCC taking approximately 2 hours to find the 18 documents previously released and 7 hours to examine them and make a decision. The estimated decision making time was significant as 4 third parties need to be consulted. I was also told that under s.31 of the Act the statutory timeframe for processing my request was on hold until there was an agreed outcome on any charges. This meant that the 30 day limit for processing my request was on hold from the day that I received the notice and begins again on either:
a) the day I pay the deposit sought; or
b) if applicable, the day on which the ACCC makes a decision not to impose a charge.

On 19 April I made submissions and on 1 May the ACCC revised the charge to $34.80. This revised estimate included approximately 1 hour preparing and copying the documents covered by the request and preparing schedules. It also included 5 hours examining the documents, consulting third parties and making a decision. This has been reduced from 7 hours in view of the previous third party consultations and decision. It was expected that 4 third parties need to be consulted. The recommended time for this task is two hours per party, and the ACCC had reduced this time substantially in view previous consultations undertaken. I was also told that in accordance with sections 15 and 31 of the FOI Act, the 30 day limit for processing my request remained on hold until I paid the deposit or a review decision was made with the effect that a charge would not be imposed.

On 24 May I made submissions about the proposed charge of $34.80 and on 14 Jun I was advised that the ACCC took the submissions as a request for a review. On 23 Jun I was informed that the reviewer could not see any general public interest, or interest of a substantial section of the public, in relation to the material covered by the scope of my request. Given that the documents had already been the subject of previous FOI request, and the estimated processing charges were $34.80, the reviewer decided to waive the fees. I was told that the ACCC would begin processing my request and I could expect a decision on or before 11 July 2017.

I assume this is the subs.15(6) mentioned in your letter. Subsection 15(6): Where, in relation to a request, the agency or Minister determines in writing that the requirements of section 26A, 27 or 27A make it appropriate to extend the period referred to in paragraph (5)(b)
(a) the period is extended by a further period of 30 days; and (b) the agency or Minister must, as soon as practicable, inform the applicant that the period has been so extended.

Given your determination is about consultation with third parties I expect to receive a decision on or before 10 August 2017 i.e.11 July 2017 extended by 30 days.

As to providing information to the four third parties, the ACCC could notify them about the righttoknow website and the information published there about the request.

Yours sincerely,

JS

Dear David,

Thank you for providing the documents.

Given the comment about release into the public domain contained in the memo dated March 29, 2015 (document 3) one can only speculate why the documents were not published previously in the Disclosure Log or elsewhere. Had that occurred it would have saved a lot of AER / ACCC time and resources.

Yours sincerely,

JS