Dear Services Australia,

Following recent AAT decisions and Ombudsman reports highlighting the failures of the Agency in understanding and applying legislation, I seek the following documents:

1. For income apportionment debts: The General Instructions for Decision makers created by DSS for Services Australia decision-makers to apply referred to in the Ombudsman's recent statement (Recommendation 2): https://www.ombudsman.gov.au/__data/asse....
In the event there is a version change prior to my request being finalised, I would like both versions of the document, original and updated please.
I'm requesting this from you, not DSS, as it constitutes operational information of Services Australia.

Can I also get the date this General Instructions document was published by Services Australia in compliance with its obligations under section 8(D)(3), Freedom of Information Act 1982 (Cth)

I also seek the revised policy on grossed up bank statement debts referred to by Senior Member Webb in Jackson and Secretary, Department of Social Services (Social services second review) [2023] AATA 1286 (22 May 2023) at paragraph 4:

"The Secretary’s legal representative informed me a new Departmental policy was promulgated in December 2022 in respect of assessing income from a claimant’s bank records, under which records from Mr Jackson’s previous employer/s would be obtained. "

I would like this policy.

Can I get the date this revised policy was published by Services Australia in compliance with its obligations under section 8(D)(3) of the Freedom of Information Act 1982?

Yours faithfully,

Frank N Fearless

Dear FOI.LEGAL.TEAM,

Apologies I missed your deadline, but I can't on principle consent to an extension of time when the request is for documents relating to actual administrative decision-making. Getting OAIC involved helps highlight the benefit of business teams proactively screening and disclosing operational information upon its creation/receipt. Rather than having to wait for a request!

Thanks for your help

Frank N Fearless

Dear FOI.LEGAL.TEAM,

I note that the date specified on your original notice to me as now passed. I'd be grateful if you could supply any applicable deemed refusal notification. If of course you have the decision but suffered some force majeure event (missed a clearance email for example) I'd love to have it.

The failure to meet the timeline is disappointing for the following reasons:

- Services Australia is under an obligation to publish all operational information under the FOI Act. It remains unclear if these documents were listed publicly.
- If they were, standard process is to dub information 'conditionally FOI exempt' - a process which implies, one would hope, some prima facie level of screening for all documentation. A request for operational information should not yield the type of scrambling that has occurred here.
-At a time when the relationship between Services Australia and DSS is under literal review post Royal Commission, it is concerning to see an element of confusion in who wanted to take my request. Clarity of roles and understanding operational matters is important.
- OAIC evaluated your request for an extension as unnecessary. Surely, we should respect the resources and expertise of our mutual, esteemed umpire in this process.

In the event a deemed refusal situation now exists: I would like to record a complaint against the business areas involved in the handling of this request and these instructions generally. I expressly state my dissatisfaction and my expectation that a response will be provided. Consider this a complaint made under the Managing customer complaints and feedback 104-02000000.

Under that blueprint, I am entitled to make a complaint anonymously:

"Customers are entitled to make complaints or provide feedback anonymously. Staff will not record identifying details of customers who wish to remain anonymous. Where possible staff will confirm with the customer if and how they want to be advised of the complaint outcome..."

I confirm that I request a written response in this forum. You may dispense with the prescribed efforts to call under the complaints policy. I would prefer my right to anonymity in undertaking an FOI request is not waived.

I would like a response to the following grounds of complaint:

- Were these documents published on the operational information library of Services Australia upon their creation? If the answer is yes, please provide these links and the dates they were created. Publication would have assisted both myself and Jennifer in handling this request and avoiding the delay here.
- If these documents were not published on the operational information library, why Services Australia believes this was not a breach of its obligations under the FOI Act? I hope and expect they were promptly uploaded upon creation of course - Jennifer has now dug them out and can check.
- Given the independent evaluation by OAIC that an extension was not needed, please supply an explanation as to why Services Australia took as long as it did? DSS' request to 'consider sensitivities' is, as OAIC pointed out, the performance of a marginal courtesy to an entity that (rightly in my view) refused transfer of the request. That refusal reflected the status of the document as operational instructions to Services Australia. Services Australia releases operational documents - including past blueprints about this very legacy cohort of debts - all the time.
- My suggested resolution of this complaint is, of course, the documents I requested, which should happen quickly, particularly if a decision exists in draft form.

Let's save the taxpayer and poor OAIC some resources here and embrace the wisdom of your CEO's response to NTG-177 at the recent Robodebt Royal Commission:

"Services Australia has internal mechanisms for making and resolving complaints. As a
general principle, I expect that issues are dealt with at the lowest level and as quickly as is
appropriate for the issue."

Fearlessly yours,

Frank N Fearless

Dear FOI.LEGAL.TEAM,

Thank you for your swift response, please record that compliment formally. I appreciate the work all FOI units perform, far too often under-valued. Hence my emphasis on the relevant business units in my above complaint.

As OAIC will consult this thread, I want to make some submissions on the 15AC(6) conditions it may impose in the event it exercises its exceptional 15AC(4) discretion. I submit the following conditions are appropriate:

(1) The immediate response to my request for general information on when, if at all, these documents were published as operational information. That information is simple fact, an easy consultation of metadata, not subject to any remaining process of consultation or conceivable exemption.
(2) the sharpest timeline OAIC views as appropriate for the provision of these documents. Immediate release may even be appropriate if a draft decision exists in my view.
(3) The usual requirement of regular updates to me which is a standard condition for OAIC.

I note the following contextual factors which should guide OAIC to a strong level of prescription in terms of time:

1. The variance in the dates for set by OAIC in its extension decision and Services Australia in its response to me. It appears that OAIC's extension date was premised on return on 9 September not 11 September, boosting my arguments.
2. The decision not to extend was a clear ruling on the scope of activity to be carried out. The agency was fully and reasonably on notice of what was a legitimate expectation in terms of time.
3. I would ask that internal documentation be secured by OAIC evaluate whether extra-statutory processes of notification, escalation or clearance contributed to delay or will further delay the timely processing of the request. I doubt DSS' response to the consultation were of sufficient revelatory character to ground additional time. They, after all, refused transfer of the request, underlining their subordinate in interest in the documents. Furthermore in the context of 15AC(4) extensions, time ordinarily allocated to the usual "heads up to leadership" emails prior to release should not be allocated time in the calculation of the new extension. Those can occur after my documents are released, not before.

4. I note that the FOI Guidelines at [13.72] encourage agencies to record reasons for a
determination that an exemption applies to a document under the Information Publication Scheme.

In previous complaints closures by OAIC addressed to applicants and released via FOI, OAIC has stressed the importance of compliance with Services Australia’s internal guidance material on operational information. At least in 2018 documentation available to me, this internal guidance provided:

"Business areas responsible for operational information have been asked to identify all
operational information and any documents which may contain information that should not
be published (including why the information should not be released).]…
When reviewing operational information and considering whether it needs to be published, the
following questions will help:…
Have I documented the reasons for any decision not to release operational information?"

It appears there has been a breakdown in standard process here, I ask OAIC to evaluate if that is the case. If any IPS evaluation occurred for these documents, this would of course be relevant to the amount of time that should now be accorded - a preexisting analysis would exist.

More broadly: A heavily prescriptive time limit on this request will further the objects of the Act and preserve the value and public interest in this information.

1. It is well known from publicly available statements that the department/agency made a commitment to return a brief on income apportionment debts to the relevant Ministers by the end of August. It is clear, and indeed a stated intention, of the Minister for Social Service to make a decision on this legacy cohort of debts as soon as possible https://ministers.dss.gov.au/media-relea... The earliest possible decision on this request will ensure that past operational approaches can be highlighted to the public while they still perceive the issue as one of public importance.

2. Recommendation 2 of the Ombudsman in his "Lessons in Lawfulness" report which relates to one of the requested documents, was only partially accepted by "the agencies". The release of this document will make clearer what actions need to be taken in implementing this recommendation. It will also allow the public to consider whether individuals were subjected to detriment due to a lack of transparency or inflexible application of a policy. In the event the Minister chooses not to engage in a substantial project of historic remediation, the documents will assist in advising the public on what precisely they can expect in the event they choose to exercise their appeal rights or when remediation might commence outside that.

3. As the topic of remediation will be a matter of public debate in the very short term, the second document, outlining a late arriving change to bank statements debts, which occurred after long standing engagement with the Ombudsman, is also of immediate public interest.

The section 15AC(4) and (6) discretions should be applied in line with the statutory objects and in the light of the full context of this request, to set the firmest possible expectation on the date of return of this information.

Yours sincerely,

Frank N Fearless

Dear OAIC - FOI DR,

Given the section 15AC(4) request Services Australia has now foreshadowed in this matter, I just wanted to highlight the submissions I have made on this platform. To make my bottom line position clear: if this decision cannot be provided on a far shorter timescale than October 2, my preference would be for Services Australia to be rendered functus officio. I am happy to forego my internal review rights if the section 15AC(4) extension is going to be longer than a few days. I will simply request the document again with a fresh request today or tomorrow and get a decision by October 13 or 14 through that.

As I note, my request has a specific time sensitive relevance and character. Preserving my right to internal review is not all that laudable or generous towards my interests in that specific context. An overly generous Section 15AC(4) extension will also rapture the statutory 'deemed refusal' event. If I can't have these operational documents almost immediately, I am happy to walk away with the point of principle standing. The historical roots of 15AC process lie in old process of certifying 'unreasonable delay' after all. So I would enjoy an evaluation of what a reasonable time for this request was - don't let my internal review rights influence you too much.

Sorry for taking up your time and thank you for your work which is undertaken under such extraordinary resource constraints.

Yours sincerely,

Frank N Fearless

Dear Services Australia representative,

Just as a courtesy, I've heard nothing of a section 15AC request at this point. So I've lodged an external review application with OAIC. So if your 15AC hasn't gone in by now, we'll run the s54Z process. Our exchanges here mean we can skip the OAIC preliminary inquiries and go straight to the direction, so that was useful.

I also want to note that I regard the response to my formal internal complaint as incomplete or unsatisfactory. I received an acknowledgement consisting of:

- noting the existence two factual events.
- noting the existence of a consultation that OAIC itself said there was plenty of time for. The original OAIC decision stated extra time was not appropriate "because of any potential delay caused by undertaking a courtesy consultation" with DSS. I have not received proper explanation.
- running a standard business process to avoid the more directory s54Z OAIC process

So that does not resolve my written internal complaint under your operational blueprint. I note the following provisions of your procedure:

1. "First contact resolution is about resolving the customer feedback or issue at the point of entry, addressing all outstanding issues."

2. "A staff member retains ownership of a complaint until it is finalised or is escalated to a Level 2 complaint. A Level 1 complaint is considered finalised when:
- all reasonable actions have been taken to resolve the issue
 the customer has been advised of:
o the complaint outcome
o suitable options for escalation if they remain dissatisfied"

I request a response to the following outstanding issues:

- Were these documents published on the operational information library of Services Australia upon their creation? If the answer is yes, please provide these links and the dates they were created. Publication would have assisted both myself and Jennifer in handling this request and avoiding the delay here.
- If these documents were not published on the operational information library, why Services Australia believes this was not a breach of its obligations under the FOI Act? I hope and expect they were promptly uploaded upon creation of course - Jennifer has now dug them out and can check.
- Why the consultation with DSS went beyond any potential delay the OAIC decision-maker could even countenance.

Have a lovely weekend.

Yours faithfully,

Frank N Fearless

Dear Services Australia,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Services Australia's handling of my FOI request 'Remediation of Debt Decision Making'.

Grounds for review

I might start with the public interest balance as this is overarching for both claimed exemptions.

Disclosure of paragraph 2 of this document supports the Commonwealth Ombudsman's position that this policy document was unlawful and amounted to fettering a discretion. The DSS instructions set an unqualified expectation as to outcome. From the policy entity to delegates. The wording of the policy is so poor it will not fall under even the Full Federal Court's flexible and forgiving approach in G v Minister for Immigration. DSS did not state the relevant considerations to determining 'sufficient reason' under section 126. It did not even employ the usual term of art - 'usually' - or instruct decision-makers to be alive to exceptions. The failure to take into account the principles of administration in section 8 of the Social Security Administration Act is particularly galling. We have had a Royal Commission that underlined how many vulnerable people will never appeal. The obligation to take into account relevant AAT decisions applies to all administration performed by the Secretary and his delegates.

The result is that unless and until government policy changes, individuals and organisations supporting them will need to weigh and consider internal review. The FOI guidelines strongly emphasise procedural fairness as a public interest factor. Most individuals in this cohort either (i) were threatened with unlawful averaging from 2015-2019 or (ii) had their debts unlawfully averaged. They have limited faith, and fear a merry go round.

Without fuller publication of this policy, these individuals will have no clear guidance on the nature of the calculation process, how they will be supported and how evidence will be evaluated. This decision even refuses to disclose the circumstances in which DSS thinks additional efforts should be made to obtain employer information on behalf of people.

So, I submit that disclosure of the document would further the objects of the Act, namely:

(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;

(b) increasing scrutiny, discussion, comment and review of the Government's activities.

The following factors in 11B(3) of the FOI Act tend to support disclosure of document:
(i) reveal the reason for a government decision and any background or contextual information that informed the decision; and
(ii) promote effective oversight of public expenditure.

I also note that the more specific factors outlined by para 6.25 FOI guidelines are active in the case of this document:
(a) FOI Act promotes disclosure
1. inform the community of the Government’s operations, including, in particular, the policies, rules, guidelines, practices and codes of conduct followed by the Government in its dealings with members of the community
2. allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official
...
(f) contribute to the administration of justice generally, including procedural fairness
(h) contribute to the administration of justice for a person
...
(i) advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies

Moving now to the actual exemptions:

Claiming the Deliberative Exemption on an Operational Policy Document

The claiming of the deliberative processes exemption is innovative, but wholly misplaced. This document is a policy statement (an instruction) from DSS to Services Australia. As the recent Ministerial joint statement on income apportionment itself states: "Administration of the Social Security Act 1991 ... sits with the Secretary of the Department of Social Services'. Even were it to contain passages that give options or canvas approaches that does not place it within the scope of 47C. It is operational information. Decision-makers are under an obligation to apply policy in their decision-making, and this includes material which raises options or choices or flags material for further deliberation. All material in this document is designed to guide decision-making or inform decisions to escalate or consult.

See FOI guidelines para 6.53. This is matter that was not obtained, prepared or recorded in the course of, or for the purposes of, a deliberative process. [6.66] It is actually an output, put forward to the Ombudsman as departmental and agency practice.

Section 47E(d):

One piece of context that jumps out immediately here. This policy applies to individuals who seek internal or external reviews - that's its ambit. The Agency's claim that these individuals will evade it or circumvent it .. by themselves requesting a review. Seems counter-intuitive.These are individuals who have previously tendered information in the form of payslips to the Agency. From 2015 they were infamously not under any legal obligation to do so but had been threatened with averaging. They're the ones who "did the right thing", as the Agency expounded so volubly for years. Portraying them as a source of system threatening duplicity seems impolite and wholly speculative. I also note that the system of debt calculation has changed - so there is no 'threat' to current debt raising processes. The approach to the evaluation of oral statements is also well known, with the relevant policy in the public domain due to the Royal Commission.

Moving into specifics, the Agency's decision here another one of its confected section 47E(d) invocations. All, or at least most of, the material here does not fall within the scope of the section 47E(d).

Redactions occured on the basis that the documents would result in individuals taking evasive action, thereby rendering the Department’s process inefficient. Statements as to what qualifies as acceptable evidence and the criteria for a statutory decision are not processes which can be “gamed” or evaded by recipients. The decision-maker’s reasons are overly general, bundling together content of differing form and character. An individual’s past income or their past employment represent immutable questions of fact, capable of confirmation via their past interactions with Centrelink or the documents the Agency actually holds. The redacted content likely address the relevant evidential thresholds and relevant considerations informing the exercise of a statutory power including evidence gathering.

It is clear from the description of the documents that a large majority, if not all, of the content, should be treated as analogous to document 15 in Paul Farrell and Australian Customs and Border Protection Service [2015] AICmr52 at [15]. Only a small proportion of this document was found to attract the exemption (even prior to a public interest analysis). This document was:

“...a ten page document that contains a framework analysis of considerations that are relevant to enforced turnback operations, including the legal basis for operations, the operational objective, procedures to be followed, decision making, and managing the response and conduct of boat occupants. The content deals with issues that one would expect to find in a government procedural manual or document. Release of this discussion would add to public understanding of how a difficult and sensitive function is discharged within government. Indeed, at least some of the content matches information that already forms part of public discussion of border control issues.”

The decision-maker has not adequately particularised their claim of the exemption for the majority of the content featured in the requested documents. Section 55D of the Freedom of information Act underlines that the onus for establishing that a decision to refuse access to a document is justified is on the Department.

Turning now to the substance of the stretched claims that people will cause debt raising to collapse through a sustained cycle of knowing misrepresentation. The standard processes which the Department uses to identify knowing misrepresentations are (i) the provision of statutory notice under the social security law (ii) the provision of statutory notices to secure employer or bank documentation.

These are not prejudiced, or the sources of inefficiency. Both these processes remain available and are easily triggered in the era of automated correspondence. It is notable that under sections 66-72, and section 192 of the social security law, a failure to respond or misrepresentations may result in substantial criminal penalties. In this particular context it is difficult to discern quite how the asserted harm will eventuate and can even be established when the department already holds these people's payslips.

The internal reviewer should also ponder the wise admission of the ATO in its submission to the 2011 review of the FOI Act that:

“...The difficulty for the agency lies in the test for substantial and adverse effect. Whilst it may, in the example of the tax audit, be arguable that the particular FOI request has a substantial and adverse impact on that particular tax audit, it could be argued that a large agency like the ATO could reasonably be expected to reassign people to the audit and so bring the adverse impact below the threshold of what may be substantial.”

The internal reviewer will need to explain why it is reasonable to allege that an instruction documents will trigger such a wave a misrepresentation when the fact of a person’s income is eminently verifiable and such a severe penalty applies to misrepresentations. And the person themselves is the one who commenced the process. And the Agency already holds the primary documentation - the payslips.

The standard processes for addressing fraud or misrepresentation are in no way endangered and no specific risk has been identified.

Reviewing the ambit and documents in scope

I note I requested policy in relation to bank statement debts created in December. The decision does not make clear if that policy exists.
I still seek the date this disclosed document was published, which effectively represents metadata not available in public form. I invite the internal reviewer to approach the date of publication of these documents as information that is stored electronically and not in a discrete written form [section 17].

As a courtesy, just a heads up that I intend to complain to OAIC if my query regarding the publication date of this document under section 8 of the FOI is not answered. The document is quite clearly important operational information and I simply want my legitimate query - my internal complaint - answered.
 
I will end by noting the quality of the original decision. A mere statement that consideration of relevant factors has occurred goes nowhere to establishing active intellectual engagement necessary for a valid exercise of discretion. The initial decision-maker makes no findings whatsoever in relation to the factors favoring disclosure. In a statute whose foundational logic is public interest balancing, there was no effort to balance.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/r...

Yours faithfully,

Frank N Fearless

Dear FOI.LEGAL.TEAM,

Thank you for this decision, I'll be lodging to OAIC so we'll adjourn for a couple of years.

I do want to give some feedback on your interpretation of the provisions relating to operational information. You're right you don't have to publish exempt matter:

"exempt matter means matter the inclusion of which in a document causes the document to be an exempt document"

But an "exempt document" has a specific meaning, outlined in the same definition section.

A conditionally exempt document containing only limited public interest redactions does not qualify. Under section 31B (b) an "exempt document" extends only to conditionally exempt documents which are entirely exempt from release under public interest balancing:

"A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest"

Access to content in this document has been ruled (by your good self no less!) as being in the public interest. The existence of partial redactions is not sufficient to place all of its content within the statutory definition of 'exempt document'. The document does not contain 'exempt matter' of sufficient extent or character to render it an 'exempt document'.

You might also recall that the definition 'document' in the Act includes 'any part' of a document'!

One does not get to bury the existence of core operational information because of a contingent choice by an agency throw a line or two of conditionally exempt material into a document alongside information that would otherwise be released.

The Australian public were entitled to expect the existence of this document/instruction to be disclosed and where they may obtain it. That's how bare publication of operational information can be as we know.

In an ideal world, Services Australia would have screened the document and published it under section 8(a).

The people affected deserved to know Services Australia were operating under an inflexible direction not to review these unlawful debts in any circumstance.

Yours sincerely,

Frank N Fearless