Report on the operations of APSC
Dear Australian Public Service Commission,
I refer to a freedom of information decision issued by an official in the Office of the Commonwealth Ombudsman in December 2023:
https://archive.org/download/foi-2023-10....
In response to a request for access to a report setting out feedback provided to the Australian Public Service Commission, an official in the Office of the Commonwealth Ombudsman identified an eight page document dated 15 December 2022.
According to the decision maker, the “document located and within the scope of your request includes the Office’s findings, comments and suggestions relating to an investigation, communicated to an agency under s 12(4) of the Ombudsman Act 1976.”
Subsection 12(4) of the Ombudsman Act 1976 (Cth) provides that the “Ombudsman may, if he or she thinks fit, furnish comments or suggestions with respect to any matter relating to or arising out of an investigation by him or her to any Department, body or person other than a Department, body or person to which or to whom he or she has furnished a report under section 15 relating to that matter or to matters that include that matter.”
Under the Freedom of Information Act 1982 (Cth), I request access to the report issued from the Office of the Commonwealth Ombudsman, dated 15 December 2022, which “includes the Office’s findings, comments and suggestions relating to an investigation, communicated to [the Australian Public Service Commission].”
Yours faithfully,
Cynthia T
OFFICIAL
Dear Cynthia,
Thank you for your email submitting a request for access to documents
held by the Australian Public Service Commission (the Commission).
We note that the documents advised in your request are the same or largely
similar to documents that is currently the subject of an IC review that
you have notified us that you have submitted.
Kind regards
FOI OFFICER
Legal Services
Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601
w: [1]www.apsc.gov.au
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This email and any attachments may contain confidential or legally
privileged information, and neither are waived or lost if the email has
been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message,
you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If
you
have received this message in error, please notify the sender immediately
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References
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Dear FOI officer,
Thank you for your email confirming receipt of my FOI request of 13 February 2024.
In your email you have stated "we note that the documents advised in your request are the same or largely similar to documents that is currently the subject of an IC review" but the fact is that two SES employees in the APSC have said, in response to my FOI request for access to any reports on the operations of the Australian Public Service Commission given during the 2022-2023 financial year by the Commonwealth Ombudsman, that there are no documents that exist.
Contrary to your statement, my IC review application is about Samantha Montenegro's claim that “all reasonable steps have been taken to find documents within the scope of your request, and … no such documents falling within scope were found”: https://www.righttoknow.org.au/request/1.... Ms Montenegro's claim, which I believe to be false, is the subject of my IC review request. Her inadequate searches are the subject of my IC review request.
I remind you that both Melanie McIntyre and Samantha Montenegro found, as part of their statutory duties under the FOI Act and in response to my request for access to any reports on the operations of the Australian Public Service Commission given during the 2022-2023 financial year by the Commonwealth Ombudsman, that “all reasonable steps have been taken to find documents within the scope of your request, and … no such documents falling within scope were found”: https://www.righttoknow.org.au/request/1... https://www.righttoknow.org.au/request/1....
I expect to receive a lawful decision in response to my FOI request of 13 February 2024 from an official in the APSC within the statutory timeframe.
Yours sincerely,
Cynthia T
OFFICIAL
Dear Cynthia
Please see attached decision notice in relation to your FOI request.
Kind regards
FOI OFFICER
Legal Services
Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601
w: [1]www.apsc.gov.au
[2]three hexagons[3]twitter icon [4]facebook
icon
This email and any attachments may contain confidential or legally
privileged information, and neither are waived or lost if the email has
been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message,
you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If
you
have received this message in error, please notify the sender immediately
by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________
References
Visible links
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3. https://twitter.com/PublicServiceAU
4. https://www.facebook.com/AusPublicService/
Dear SM,
Please pass this to the person who conducts Freedom of Information reviews.
I request an internal review of your handling of my FOI request 'Report on the operations of APSC' on all ground. The reasons for decision are marred by both factual and legal errors. The legal errors extend to relying on irrelevant authorities.
I note that paragraph 26(1)(b) of the FOI Act 1982 (Cth) provides that where, in relation to a request, a decision is made relating to a refusal to grant access to a document in accordance with the request or deferring provision of access to a document, the decision‑maker shall cause the applicant to be given notice in writing of the decision, and the notice shall, where the decision relates to a document of an agency, state the name and designation of the person giving the decision.
"SM" is not a name; they are initials. Please ensure that the person who conducts the internal review decision provides his or her name and designation as required by law.
It's also worth noting that paragraph 26(1)(b) is informed by a constitutional imperative. Specifically, all people must be capable of bringing an application under section 75 of the Constitution against officers of the Commonwealth. Without identifying yourself, you would be seeking to subvert that entrenched constitutional right. The High Court has clearly and repeatedly identified the significance of section 75 of the Constitution to the concept of legality in Australia.
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,
Cynthia T
OFFICIAL
Good morning Cynthia,
The Australian Public Service Commission (the Commission) is writing to acknowledge receipt of your request for internal review under the Freedom of Information Act 1982 (FOI Act).
The timeframe for responding to your internal review request is 30 days from the date of receipt. This timeframe for internal review may be extended in very limited circumstances. You will be notified if these circumstances arise and the timeframe is extended.
Please note that there is a new LEX number for your internal review request. All correspondences will be referred under LEX 872.
Kind regards,
FOI OFFICER
Legal Services
Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601
This email and any attachments may contain confidential or legally privileged information, and neither are waived or lost if the email has been sent in error. If you have received this email in error, please delete it (including any copies) and notify the sender. Please consult with APSC Legal Services before using disclosing any part of this email or attachments to a third party.
OFFICIAL
Dear Cynthia
Please find attached decision notice.
Kind regards
Melanie.
Melanie McIntyre (she/her)
General Counsel
Australian Public Service Commission
[1]Office of the Australian Information Reference Code:
Commissioner ICR_10-56851582-4817
You submitted a form called: FOI Review_
Your form reference code is: ICR_10-56851582-4817
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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4. mailto:[email address]
Our reference: MR24/00927
By email: [FOI #11097 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 MR24/00927.
Yours sincerely
Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
Notice:
The information contained in this email message and any attached files may
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
time) and delete all copies of this transmission together with any
attachments.
Our reference: MR24/00880
Agency internal review reference: LEX 872
Agency initial decision reference: LEX 814
By email: [1][FOI #11097 email]
Information Commissioner review application about the Australian Public
Service Commission
Dear Cynthia T,
I refer to the application for Information Commissioner review (IC review)
of an internal review decision made by the Australian Public Service
Commission (the Agency) under the Freedom of Information Act 1982 (Cth)
(the FOI Act).
I note that:
* On 15 April 2024, the Agency notified the FOI applicant of their
internal review decision via the nominated Right to Know (RTK)
electronic address ‘[FOI #11097 email]’.
1. On 24 May 2024, the Office of the Australian Information Commissioner
(OAIC) received an IC review application which similarly provided the
contact email address of
‘[FOI #11097 email]’.
At this time, the OAIC does not have sufficient evidence to be satisfied
that you were the FOI applicant and, therefore, that you had a right to
apply for IC review.
Action required by you before: 19 June 2024
Section 54L(3) of the FOI Act provides that an Information Commissioner
review (IC review) application may be made by, or on behalf of, the person
who made the request to which the decision relates.
As such, if you wish to proceed with this IC review, please provide a copy
of any notification emails sent by the Right to Know website’s
administrator about the FOI request or a screenshot of the ‘My requests’
page of your account on the Right to Know website (after you log into your
Right to Know account) showing the FOI request in question. You may also
upload a plain text copy of this correspondence to the request on Right to
Know and provide us with confirmation of this.
Discretion not to continue to undertake an IC review
Under s 54W(c) of the FOI Act, the Information Commissioner may decide not
to continue to undertake a review if an applicant fails to comply with a
[2]direction of the Information Commissioner. [1.3]
The Direction as to certain procedures to be followed by applicants in
Information Commissioner reviews, issued by the Australian Information
Commissioner under s 55(2)(e)(i), states:
* An application for IC review may be made by, or on behalf of, the person
who made the request to which decision relates (s 54L(3)). The OAIC may
require information about the applicant’s identity to establish that
they are the person who made the original FOI request or evidence that a
third party is authorised to seek review of the decision by that person.
[1.15]
1. The Information Commissioner may decide not to undertake an IC review,
or not continue to undertake an IC review, where an IC review
applicant has failed to cooperate in progressing the IC review
application or the IC review without reasonable excuse (s 54W(a)(ii)).
[1.24]
2. Applicants must respond to enquiries from the OAIC within the period
provided unless there are circumstances warranting a longer period to
respond. Applicants who are satisfied with the decision and do not
wish to proceed with the IC review must advise the OAIC in writing.
Applicants who are not satisfied with the Agency or Minister’s
decision must explain why they disagree with the decision and the
basis on which they wish to proceed with the IC review. [1.22] and
[1.33]
If you do not provide the information requested by 19 June 2024, the OAIC
will finalise this matter on the basis that we are not satisfied the IC
review application has been made by, or on behalf of, the person who made
the FOI request.
Assistance
If you are unable to respond by 19 June 2024, you must request more time
at the earliest opportunity and no later than 17 June 2024. Requests for
more time must explain why you need more time, and you must propose a new
date to provide your response.
If you require assistance regarding this email, please contact us at
[3][email address].
Please quote the reference MR24/00880 in all correspondence.
Kind regards,
[4][IMG] Georgia Furlong (she/her)
Review Advisor
Freedom of Information Branch
Office of the Australian Information Commissioner
Sydney
P 1300 363 992 E [5][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.
[6]Subscribe to Information Matters
Notice:
The information contained in this email message and any attached files may
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
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. mailto:[FOI #11097 email]
2. https://www.oaic.gov.au/engage-with-us/c...
3. mailto:[email address]
4. https://urldefense.proofpoint.com/v2/url...
5. mailto:[email address]
6. https://urldefense.proofpoint.com/v2/url...
Dear Mr Furlong,
I write to you about MR24/00880.
In your email you have said:
"If you wish to proceed with this IC review, please provide a copy
of any notification emails sent by the Right to Know website’s
administrator about the FOI request or a screenshot of the ‘My requests’
page of your account on the Right to Know website (after you log into your
Right to Know account) showing the FOI request in question. You may also
upload a plain text copy of this correspondence to the request on Right to
Know and provide us with confirmation of this."
I am unable to send documents to you using the Right to Know website, but I can upload a plain text copy of the email you sent to me today, which is what I have done below.
Yours sincerely,
Cynthia T
--------------------------------------------------------------------------------------------------------------------
Our reference: MR24/00880
Agency internal review reference: LEX 872
Agency initial decision reference: LEX 814
By email: [1][FOI #11097 email]
Information Commissioner review application about the Australian Public
Service Commission
Dear Cynthia T,
I refer to the application for Information Commissioner review (IC review)
of an internal review decision made by the Australian Public Service
Commission (the Agency) under the Freedom of Information Act 1982 (Cth)
(the FOI Act).
I note that:
* On 15 April 2024, the Agency notified the FOI applicant of their
internal review decision via the nominated Right to Know (RTK)
electronic address ‘[FOI #11097 email]’.
1. On 24 May 2024, the Office of the Australian Information Commissioner
(OAIC) received an IC review application which similarly provided the
contact email address of
‘[FOI #11097 email]’.
At this time, the OAIC does not have sufficient evidence to be satisfied
that you were the FOI applicant and, therefore, that you had a right to
apply for IC review.
Action required by you before: 19 June 2024
Section 54L(3) of the FOI Act provides that an Information Commissioner
review (IC review) application may be made by, or on behalf of, the person
who made the request to which the decision relates.
As such, if you wish to proceed with this IC review, please provide a copy
of any notification emails sent by the Right to Know website’s
administrator about the FOI request or a screenshot of the ‘My requests’
page of your account on the Right to Know website (after you log into your
Right to Know account) showing the FOI request in question. You may also
upload a plain text copy of this correspondence to the request on Right to
Know and provide us with confirmation of this.
Discretion not to continue to undertake an IC review
Under s 54W(c) of the FOI Act, the Information Commissioner may decide not
to continue to undertake a review if an applicant fails to comply with a
[2]direction of the Information Commissioner. [1.3]
The Direction as to certain procedures to be followed by applicants in
Information Commissioner reviews, issued by the Australian Information
Commissioner under s 55(2)(e)(i), states:
* An application for IC review may be made by, or on behalf of, the person
who made the request to which decision relates (s 54L(3)). The OAIC may
require information about the applicant’s identity to establish that
they are the person who made the original FOI request or evidence that a
third party is authorised to seek review of the decision by that person.
[1.15]
1. The Information Commissioner may decide not to undertake an IC review,
or not continue to undertake an IC review, where an IC review
applicant has failed to cooperate in progressing the IC review
application or the IC review without reasonable excuse (s 54W(a)(ii)).
[1.24]
2. Applicants must respond to enquiries from the OAIC within the period
provided unless there are circumstances warranting a longer period to
respond. Applicants who are satisfied with the decision and do not
wish to proceed with the IC review must advise the OAIC in writing.
Applicants who are not satisfied with the Agency or Minister’s
decision must explain why they disagree with the decision and the
basis on which they wish to proceed with the IC review. [1.22] and
[1.33]
If you do not provide the information requested by 19 June 2024, the OAIC
will finalise this matter on the basis that we are not satisfied the IC
review application has been made by, or on behalf of, the person who made
the FOI request.
Assistance
If you are unable to respond by 19 June 2024, you must request more time
at the earliest opportunity and no later than 17 June 2024. Requests for
more time must explain why you need more time, and you must propose a new
date to provide your response.
If you require assistance regarding this email, please contact us at
[3][email address].
Please quote the reference MR24/00880 in all correspondence.
Kind regards,
[4][IMG] Georgia Furlong (she/her)
Review Advisor
Freedom of Information Branch
Office of the Australian Information Commissioner
Sydney
P 1300 363 992 E [5][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.
[6]Subscribe to Information Matters
Notice:
The information contained in this email message and any attached files may
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
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. mailto:[FOI #11097 email]
2. https://www.oaic.gov.au/engage-with-us/c...
3. mailto:[email address]
4. https://urldefense.proofpoint.com/v2/url...
5. mailto:[email address]
6. https://urldefense.proofpoint.com/v2/url...
Dear Ms Furlong,
I write to you about MR24/00880.
Please find a link to a copy of your email of 12 June 2024, which I have copied and uploaded to the Right to Know website in plain text format, below:
https://www.righttoknow.org.au/request/r...
Yours sincerely,
Cynthia T
OFFICIAL
Dear Cynthia
Please find attached decision notice that relates to your IC review MR24/00880; our reference LEX 1073.
Kind regards
Melanie.
Cynthia T left an annotation ()
I C review application reasons
On 13 February 2024, I applied for the report issued from the Office of the Commonwealth Ombudsman, dated 15 December 2022, which “includes the Office’s findings, comments and suggestions relating to an investigation, communicated to [the Australian Public Service Commission].”
On 15 April 2024, Sam Montenegro of the APSC refused to grant access to the document.
Sam Montenegro refused to grant access on the basis of two conditional exemptions: ss 47E(d) and 47F of the FOI Act.
According to Ms Montenegro:
“I consider that disclosure could reasonably affect the willingness of people to make complainants to the Ombudsman on matters relating to PIDs …”
The report fates 15 December 2022 appears to be a report about the Ombudsman’s investigation of a PID.
Ms Montenegro’s refusal to release the document is not lawful.
Every non-corporate Commonwealth entity has reporting obligations. Those reporting obligations are set out in various items of legislation, including the Public Governance, Performance and Accountability Rule 2014.
Subparagraph 17AB(3)(c) of the Public Governance, Performance and Accountability Rule 2014 provides:
The annual report must include information on the most significant developments during the period in external scrutiny of the entity, and the entity’s response to that scrutiny, including particulars of any report on the operations of the entity given during the period by the Commonwealth Ombudsman.
A report that “includes the Office’s findings, comments and suggestions relating to an investigation, communicated to [the Australian Public Service Commission]” constitutes any report on the operations of the Australian Public Service Commission given during the period by the Commonwealth Ombudsman. The report sets out, according to Ms Montenegro, the Ombudsman’s findings, comments and suggestions relating to an investigation into a PID.
Despite having a statutory obligation to report particulars of any report on the operations of the Australian Public Service Commission given during the period by the Commonwealth Ombudsman, there is nothing contained in the 2022-2023 annual report of the Australian Public Service Commission setting out particulars of the report containing the “findings, comments and suggestions” on the operations of the Australian Public Service Commission given during the period by the Commonwealth Ombudsman. In fact, the following is noted in part 6 of the 2022-2023 annual report of the Australian Public Service Commission, under the heading External Scrutiny:
“No reports were produced by the Commonwealth Ombudsman or the Australian Information Commissioner.”
That is obviously false. Ms Montenegro has confirmed that there is a report issued from the Office of the Commonwealth Ombudsman, dated 15 December 2022, which “includes the Office’s findings, comments and suggestions relating to an investigation, communicated to [the Australian Public Service Commission].”
The Australian Public Service Commissioner has a statutory duty to set out particulars of any report containing the “findings, comments and suggestions” on the operations of the Australian Public Service Commission given during the period by the Commonwealth Ombudsman.
The Australian Public Service Commissioner has not, in the relevant annual report, set out particulars of any report containing the “findings, comments and suggestions” on the operations of the Australian Public Service Commission given during the period by the Commonwealth Ombudsman.
The Australian Public Service Commissioner has stated that “no reports were produced by the Commonwealth Ombudsman”, even though there is a report, dated 15 December 2022, containing “findings, comments and suggestions” on the operations of the Australian Public Service Commission given during the period by the Commonwealth Ombudsman.
Since the Australian Public Service Commissioner has failed to set out the particulars of that report, the report should be published so that Australians can review the particulars of the Commonwealth Ombudsman’s into the operations of the Australian Public Service Commission.