Public interest disclosures
Dear Attorney-General's Department,
Despite an express object of the Public Interest Disclosure Act 2013 (Cth) requiring that “disclosures by public officials are properly investigated and dealt with” (Public Interest Disclosure Act 2013 (Cth), s 6(d)), under the Freedom of Information Act 1982 (Cth), I request access to any and all documents in the possession of the Attorney-General's Department providing that it is permissible for an inadequate public interest disclosure investigation to remain unremedied by officials in the agency to which an internal disclosure under the Public Interest Disclosure Act 2013 (Cth) was allocated for investigation.
Yours faithfully,
Brutus
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OFFICIAL
Good morning,
Thank you for submitting your freedom of information (FOI) request on 3
September 2023. We are seeking further clarification about the documents
that you are looking that belong to the department. It appears that you
are seeking documents in relation to a policy position on a legal issue
under the Public Interest Disclosure Act.
In order for us to better understand your request and assist our teams
with their search, can you please clearly explain or clarify which
documents in possession of the department that you are requesting? It
would also assist in narrowing down the search if you could provide a
specific time frame for the documentation that you are requesting for.
This will enable staff to clearly identify the document/s you are
requesting.
Please note, the department is unable to take further action in response
to your email of 3 September 2023 until further clarification of the scope
has been received.
Kind regards
Alistair
Case Officer | Freedom of Information & Privacy | Strategy & Governance
Branch
Attorney-General’s Department
Phone (02) 6141 6666 | Email [AGD request email]
OFFICIAL
The Attorney-General’s Department may collect your personal information
where it is reasonably necessary for, or directly related to, our
functions, including those under the Freedom of Information Act 1982 (FOI
Act) and the Privacy Act 1988. We may collect your name, email address and
telephone number so that we can contact you about your request or privacy
complaint. If your request concerns accessing or correcting your personal
information, we will collect the minimum amount of evidence necessary to
verify your identity. We hold personal information in accordance with the
Privacy Act and our privacy policy. If you have an enquiry or complaint
about your privacy, please contact the Privacy Officer on 02 6141 6666 or
via e-mail [email address].
If you have received this email in error, please notify us immediately by
return email and delete all copies. If this email or any attachments have
been sent to you in error, that error does not constitute waiver of any
confidentiality, privilege or copyright in respect of information in the
email or attachments.
Dear Alistair,
Acknowledging receipt of my FOI request
An agency is obligated to acknowledge receipt of an FOI request no later than 14 days after the FOI request was received by that agency: FOI Act, s 15(5)(a).
You have acknowledged receiving my FOI request on 3 Septemer 2023. Today is 20 September 2023, and to day is the first time that any correspondence has been entered into by an official in the AGD in respect of my FOI request.
The AGD has failed to comply with paragraph 15(5)(a) of the FOI Act.
My request
In your email, you have noted the following:
“In order for us to better understand your request and assist our teams
with their search, can you please clearly explain or clarify which
documents in possession of the department that you are requesting? It
would also assist in narrowing down the search if you could provide a
specific time frame for the documentation that you are requesting for.
This will enable staff to clearly identify the document/s you are
requesting.”
As you would be aware, 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.
An applicant may not know exactly what documents exist and may describe a class of documents, for example: all documents relating to a particular person or subject matter: FOI Guidelines, 3.110.
As you would be aware, although a request under the FOI Act must be for ‘documents’, rather than for ‘information’, a request may be phrased by reference to the information that a document contains. This may in fact be an effective and concise way for an FOI applicant to identify documents: FOI Guidelines, 3.110.
You are obligated, under s 93A of the FOI Act, to have regard to the FOI Guidelines.
My FOI request is clear. It is a request for “any and all documents in the possession of the Attorney-General's Department providing that it is permissible for an inadequate public interest disclosure investigation to remain unremedied by officials in the agency to which an internal disclosure under the Public Interest Disclosure Act 2013 (Cth) was allocated for investigation.”
If I knew what documents the AGD had in its possession in respect of the narrow subject matter set out in my FOI request, I would have asked for those documents. It is because I do not have access to the documents of the Attorney-General's Department that I have requested the narrow class of documents in the possession of the Attorney-General's Department providing that it is permissible for an inadequate public interest disclosure investigation to remain unremedied by officials in the agency to which an internal disclosure under the Public Interest Disclosure Act 2013 (Cth) was allocated for investigation.
The information in the documents pertains to the permissibility of inadequate public interest disclosure investigation remaining unremedied (i.e. in an inadequately investigated state) by officials in the agency to which an internal disclosure under the Public Interest Disclosure Act 2013 (Cth) was allocated for investigation. It is perfectly acceptable for me to word my FOI request in such a way: FOI Guidelines, 3.110.
As to the timeframe in question – the Public Interest Disclosure Act 2013 (Cth) has been in operation for about a decade. You would be searching for documents prior to the enactment of the Public Interest Disclosure Act 2013 (Cth). That is self-evident.
Your communicated views about an alleged “lack of clarity” in my FOI request are not as well informed, in the light of the law, as they ought to be.
I have made identical requests to the Services Australia, the APSC, the NDIA, and the Treasury. All of those agencies acknowledged receipt of my FOI request within the statutory timeframe. Not one of those agencies has belly-ached about my FOI request not being clear. All are getting on with the job.
The Attorney-General, Mr Dreyfus KC MP, has bleated about how officials in federal agencies and departments need to engage with freedom of information legislation to give effect to the objects of the enactment, and the intentions of the Parliament: www.markdreyfus.com/media/transcripts/ab.... The irony is that, you, an official in the Attorney-General’s Department, have:
a) failed to comply with the statutory obligation to acknowledge receipt of my FIO request in time; and
b) failed to comply with section 93A of the FOI Act because you have not had regard to the FOI Guidelines, which provide that (i) 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, and (ii) an access applicant, not knowing exactly what documents are in the possession of an agency, may describe a class of documents, for example all documents relating to a particular person or subject matter, and (iii) an access applicant may make an access request by reference to the information that a document contains, which may be an effective and concise way for an FOI applicant to identify documents.
Please make an effort to give effect to the intentions of the Parliament.
Please make an effort to give effect to your Minister’s wishes.
Please make an effort to engage with my request rather than a vain attempt to find fault with it.
Please proceed with processing my request, according to law.
Yours sincerely,
Brutus
Dear Alistair,
Do you propose to provide me with reasons for decision any time soon? If not, I'll apply for IC review on the ground of a deemed refusal decision.
I note that:
a) PMC;
b) Treasury;
c) the APSC; and
d) Services Australia,
have all provided reasons for decision for the identical requests made to those Departments/Agencies.
Yours sincerely,
Brutus
OFFICIAL
Good afternoon
Freedom of Information Request FOI23/469 - Request consultation process
Attached is a notice of intention to practically refuse in respect of your
Freedom of Information request made to the Attorney-General's Department
(the department).
Before the department makes a decision, 24AB of the FOI Act provides for a
‘request consultation process'. This means you have 14 days in which to
respond to this notice revising your request in one of the ways described
in the attached letter. We expect to hear from you by 20 October 2023.
If you have any questions, please contact me by telephone on (02) 6141
6666 or by email to [1][AGD request email].
Kind regards
Alistair
Case Officer | Freedom of Information & Privacy | Strategy & Governance
Branch
Attorney-General’s Department
Phone (02) 6141 6666 | Email [AGD request email]
OFFICIAL
The Attorney-General’s Department may collect your personal information
where it is reasonably necessary for, or directly related to, our
functions, including those under the Freedom of Information Act 1982 (FOI
Act) and the Privacy Act 1988. We may collect your name, email address and
telephone number so that we can contact you about your request or privacy
complaint. If your request concerns accessing or correcting your personal
information, we will collect the minimum amount of evidence necessary to
verify your identity. We hold personal information in accordance with the
Privacy Act and our privacy policy. If you have an enquiry or complaint
about your privacy, please contact the Privacy Officer on 02 6141 6666 or
via e-mail [email address].
If you have received this email in error, please notify us immediately by
return email and delete all copies. If this email or any attachments have
been sent to you in error, that error does not constitute waiver of any
confidentiality, privilege or copyright in respect of information in the
email or attachments.
References
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1. mailto:[AGD request email]
[1]Office of the Australian Information Reference Code:
Commissioner ICR_10-55240163-4015
You submitted a form called: FOI Review_
Your form reference code is: ICR_10-55240163-4015
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.
References
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3. file:///tmp/tel:1300 363 992
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Our reference: MR23/01213
By email: [FOI #10652 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 MR23/01213.
Yours sincerely
Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
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Brutus left an annotation ()
I made my request on 3 September 2023.
No decision was provided within the 30 day statutory period. A refusal decision is deemed to have been made by the Secretary of the AGD on 3 October 2023.
L Stockwell, Acting Assistant Secretary in the Transparency and Administrative Law Branch of the AGD, provided a notice of an intention to refuse my FOI request on the basis of a practical refusal ground on 6 October 2023. The notice of an intention to refuse to process my FOI request is invalid because a deemed refusal decision has already come into effect.
An application for IC review has been submitted.
Dear Alistair,
In your email of 6 October 2023, you stated:
Attached is a notice of intention to practically refuse in respect of your
Freedom of Information request made to the Attorney-General's Department
(the department).
Before the department makes a decision, 24AB of the FOI Act provides for a
‘request consultation process'. This means you have 14 days in which to
respond to this notice revising your request in one of the ways described
in the attached letter. We expect to hear from you by 20 October 2023.
Far be it from me to dash you expectations.
I made my request on 3 September 2023. You acknowledged receipt of my request of 3 September 2023 on 20 September 2023. You commenced with the following sentence in your acknowledgement email:
Thank you for submitting your freedom of information (FOI) request on 3 September 2023 ...
No decision was provided within the 30 day statutory period. A refusal decision is deemed to have been made by the Secretary of the AGD on 3 October 2023.
L Stockwell, Acting Assistant Secretary in the Transparency and Administrative Law Branch of the AGD, provided a notice of an intention to refuse my FOI request on the basis of a practical refusal ground on 6 October 2023. The notice of an intention to refuse to process my FOI request is invalid because a deemed refusal decision has already come into effect.
I have applied for IC review of the Departmental head's deemed refusal decision. The IC review reference is MR23/01213. The AGD should expect to hear from the OAIC in due course.
Yours faithfully,
Brutus
OFFICIAL
Dear applicant
Please find attached a decision letter in relation to your freedom of
information request to the Attorney-General’s Department.
Kind regards
Dana FOI and Privacy Section
Enabling Services Group
Attorney-General’s Department
T: 02 6141 6666 E: [AGD request email]
OFFICIAL
The Attorney-General’s Department may collect your personal information
where it is reasonably necessary for, or directly related to, our
functions, including those under the Freedom of Information Act 1982 (FOI
Act) and the Privacy Act 1988. We may collect your name, email address and
telephone number so that we can contact you about your request or privacy
complaint. If your request concerns accessing or correcting your personal
information, we will collect the minimum amount of evidence necessary to
verify your identity. We hold personal information in accordance with the
Privacy Act and our privacy policy. If you have an enquiry or complaint
about your privacy, please contact the Privacy Officer on 02 6141 6666 or
via e-mail [email address].
If you have received this email in error, please notify us immediately by
return email and delete all copies. If this email or any attachments have
been sent to you in error, that error does not constitute waiver of any
confidentiality, privilege or copyright in respect of information in the
email or attachments.
Our reference: MR23/01213
Agency reference: FOI23/469
By email: [1][FOI #10652 email]
Request for further information
Dear ., Brutus,
Thank you for your application for Information Commissioner review of a
deemed access refusal decision made by the Attorney-General’s Department
(the Department) under s 15AC(3) of the Freedom of Information Act 1982
(the FOI Act).
A copy of your IC review application is attached.
To assist the OAIC in progressing the your IC review application, I would
be grateful if you could please confirm the scope of your FOI request.
Your request was:
Despite an express object of the Public Interest Disclosure Act 2013 (Cth)
requiring that “disclosures by public officials are properly investigated
and dealt with” (Public Interest Disclosure Act 2013 (Cth), s 6(d)), under
the Freedom of Information Act 1982 (Cth), I request access to any and all
documents in the possession of the Attorney-General's Department providing
that it is permissible for an inadequate public interest disclosure
investigation to remain unremedied by officials in the agency to which an
internal disclosure under the Public Interest Disclosure Act 2013 (Cth)
was allocated for investigation.
The Attorney Generals Department (AGD) found this request did not provide
information reasonably necessary to identify the documents requested.
To ensure I understand your request, can I please confirm you essentially
wanted any policy documents stating AGD investigations into internal
disclosures under the PID Act can be completed to an inadequate standard.
I’d be grateful if you could please respond by 16 February 2024.
Regards,
Heath
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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References
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Dear Heath,
Thanks for getting in touch.
You're spot on. Doesn't look like you had much trouble understanding my FOI request. Nor did APS employees in five other agencies:
https://www.righttoknow.org.au/request/1...
https://www.righttoknow.org.au/request/1...
https://www.righttoknow.org.au/request/1...
https://www.righttoknow.org.au/request/1...
https://www.righttoknow.org.au/request/1...
I don't know what L Stockwell is on about.
Yours sincerely,
Brutus
Our reference: MR23/01213
Agency reference: FOI23/469; CMR23/34240
Brutus
By email: [1][FOI #10652 email]
Dear Brutus
Thank you for your application for review. We have today informed the
Attorney-General's Department 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
Attorney-General's Department.
Kind regards
[2][IMG] Will Martin (he/him)
Paralegal | FOI Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P 1300 636 992 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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professional privilege. If you are not the intended recipient any use,
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switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
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4. https://www.oaic.gov.au/engage-with-us/n...
OFFICIAL
Dear Applicant
Freedom of Information Request FOI24/469-IC
I refer to your request to the Attorney-General's Department (the
department) under the Freedom of Information Act 1982 (FOI Act) for access
to documents and your subsequent Information Commissioner review request.
The purpose of this email is to provide you with a new decision in
response to that FOI request.
Please find attached your decision letter and Attachment A. An officer
from the Office of the Australian Information Commission will likely
contact you in due course to discuss this revised decision and next steps
for IC Review MR23/01213.
If you have any questions, please contact us by telephone on (02) 6141
6666 or by email to [1][AGD request email] quoting FOI23/469-IC.
Kind regards
FOI Case Officer
Freedom of Information and Privacy
Attorney-General’s Department
T: 02 6141 6666 | E: [2][AGD request email]
OFFICIAL
The Attorney-General’s Department may collect your personal information
where it is reasonably necessary for, or directly related to, our
functions, including those under the Freedom of Information Act 1982 (FOI
Act) and the Privacy Act 1988. We may collect your name, email address and
telephone number so that we can contact you about your request or privacy
complaint. If your request concerns accessing or correcting your personal
information, we will collect the minimum amount of evidence necessary to
verify your identity. We hold personal information in accordance with the
Privacy Act and our privacy policy. If you have an enquiry or complaint
about your privacy, please contact the Privacy Officer on 02 6141 6666 or
via e-mail [email address].
If you have received this email in error, please notify us immediately by
return email and delete all copies. If this email or any attachments have
been sent to you in error, that error does not constitute waiver of any
confidentiality, privilege or copyright in respect of information in the
email or attachments.
References
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1. mailto:[AGD request email]
2. mailto:[AGD request email]
Brutus left an annotation ()
THE HON MARK DREYFUS KC MP'S VIEWS ON COMPLYING WITH THE FOI ACT
Extracted from a transcript of an interview with Kristina Kukolja - The Law Report, ABC Radio National, 28 June 2022
...
KUKOLJA: One of the most important tools in the pursuit of government transparency for journalists and others is the Freedom of Information Act. Recent years have seen a consistent rise in the number of government documents refused for release and delays to accessing documents, as well as heavy redactions. Do you see that as a problem or something that you intend to address?
DREYFUS: I'm not sure that we need to amend the Freedom of Information Act. There were very large reforms made to the Freedom of Information Act by the former government in 2010 when Senator John Faulkner was the responsible minister. I helped with the drafting of some of those reforms. I think what needs to happen is that there needs to be a different approach and, if you like, an implementation of the existing provisions of the Freedom of Information Act. They start with a direction to government to make information as widely available as possible. That's actually what's written into the Freedom of Information Act. And you need to have governments paying attention to decisions made by the Information Commissioner. When the Information Commissioner makes a ruling rather than appealing that ruling off to the Administrative Appeals Tribunal or the Federal Court, a more appropriate response from government would be to simply accept the ruling because she has very often looked very hard at where the appropriate balance is struck. We saw that writ large with the refusal of the former government to pay attention to a decision of the Administrative Appeals Tribunal on the papers of the meetings of First Ministers, which the former government chose to describe as covered by the provisions of the Freedom Information Act that applied to the Federal Cabinet. Justice Richard White, in the Administrative Appeals Tribunal, said that those provisions of the Freedom of Information Act do not apply to meetings of First Minister, because the provisions of the Freedom of Information Act that are there for federal cabinet are for the cabinet, of which I am now the Cabinet Secretary and sitting as a minister in. I think it's really important that when you have a decision made by a court, by a federal court judge, by the Administrative Appeals Tribunal, rather than ignoring the decision it's incumbent on governments to pay attention to those decisions and apply them. And what I'd be looking for in the Freedom of Information area is a change of attitude. By governments a change of attitude, by departments - that rather than looking to how little information can be given out, how to maximise the amount of government information that is made available to the public.
KUKOLJA: Let me ask you, then, in Opposition, the Prime Minister Anthony Albanese was critical of the Morrison Government's decision to keep national cabinet documents secret as were you. Will the Labor Government grant public access to those documents, which as an example would be critical for understanding government decision making during the COVID 19 pandemic?
DREYFUS: There's a convention that applies to the cabinet papers of former governments, which is that they remain the cabinet papers of former governments and not available for public distribution. And by and large observing that convention, we will continue to apply whatever settings the former government had in place. But going forward, very much, it's our view that the meetings of First Ministers are ones that, if there is a need to provide protection from Freedom of Information applications, then the exemptions in the Freedom of Information Act that have been there since the first enactment of Freedom of Information in Australia in 1982, which protect Commonwealth-state relations that those exemptions are the ones which should be relied on. What we don't want to see is the creation of unnecessary secrecy. What we don't want to see is reliance on an exemption that applies to the meetings of Federal Cabinet incorrectly applied to meetings between First Ministers of the states, territories and the Commonwealth ...
FULL TRANSCRIPT AVAILABLE ON THE WEBSITE OF THE HON MARK DREYFUS KC MP - https://www.markdreyfus.com/media/transc...