Request for Information - Requirements for exercises of delegation under FOI Act

Kieran (Account suspended) made this Freedom of Information request to Office of the Australian Information Commissioner

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

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Dear Office of the Australian Information Commissioner,

This is to be treated as a administrative request for information.

s 26(1)(b) of the FOI Act requires FOI delegates to state their name and designation when using their delegated powers (delegated from their Secretary or CEO) to issue s 26 Statement of Reasons. Similarly, as a formal legal delegation, involving a statutory power, “a delegate literally acts in his or her own name, and signs documents in his or her own name as a delegate of the delegator” (see Australian Government Solicitor, Legal Practice Briefing No 74 (14 December 2004))

Despite this, a review I conducted of the most recent s 26 statement of reason letters published on Right to Know, for all the Commonwealth agencies or businesses listed on their front page (which is the most frequently contacted entities) identified that of the 28 Commonwealth entities there, only 21 of those entities correctly closed those s 26 statement of reasons with a signature block that contained the full name of the officer involved, their signature, and their position title.

7 agencies/entities were non-compliant (and ironically the OAIC was one of them), being the Department of Home Affairs (no position title, just use of ADM), Human Services (first name only, no signature, and ADM only), ATO (minor - only provided first initial and surname, but signature and position title provided), Defence (no signature or position title, just ADM), ASIC (no signature and ADM only), OAIC (no signature or position title, not even ADM), and Veteran Affairs (only position number and ADM).

Veteran Affairs was the only one agency using position number instead of a name (whether partial or full), with no other required detail provided (ADM is simply insufficient).

Details and link to the decision of all agencies surveyed follows:

Department of Home Affairs
Full name, signature, no position title (just ADM) https://www.righttoknow.org.au/request/4...

Department of Human Services
First name only, no signature, no position title (just ADM) https://www.righttoknow.org.au/request/4...

ATO
Initial & Last Name, signature, position title https://iorder.com.au/publication/Downlo...

AFP
Full name, signature, and position title https://www.righttoknow.org.au/request/4...

Attorney-General’s
Full name, signature and position title https://www.righttoknow.org.au/request/4...

PM&C
Full name, signature and position title https://www.righttoknow.org.au/request/2...

DFAT
Full name, signature, and position title https://www.righttoknow.org.au/request/3...

Health
Full name, signature, and position title https://www.righttoknow.org.au/request/4...

Defence
Full name, not signed, ADM only https://www.righttoknow.org.au/request/4...

Finance
Full name, signature, and position title https://www.righttoknow.org.au/request/4...

APRA
Full name, signature and position title https://www.righttoknow.org.au/request/4...

ASIC
Full name, no signature, ADM only https://www.righttoknow.org.au/request/4...

Treasury
Full name, signature, and position title https://www.righttoknow.org.au/request/4...

AEC
Full name, signature, position title https://www.righttoknow.org.au/request/2...

Environment and Energy
Full name, signature, and position title https://www.righttoknow.org.au/request/4...

ABS
Full name, signature, and position title https://www.righttoknow.org.au/request/4...

OAIC
Full name, no signature, no title (not even ADM) https://www.righttoknow.org.au/request/4...

Communications and the Arts
Full name, signature and position title https://www.righttoknow.org.au/request/4...

Jobs and Small Business
Full name, signature and position title https://www.righttoknow.org.au/request/4...

Social Services
Full name, signature, and position title
https://www.righttoknow.org.au/request/4...

Industry, Innovation and Science
Full name, signature and title
https://www.righttoknow.org.au/request/4...

Infrastructure and Regional Development
Full name, signature and title
https://www.righttoknow.org.au/request/4...

Veterans’ Affairs
Position number and ADM only
https://www.righttoknow.org.au/request/4...

ABC
Full name, signature and title
https://www.righttoknow.org.au/request/3...

Agriculture
Full name, signature and title
https://www.righttoknow.org.au/request/4...

APSC
Full name, signature and title
https://www.righttoknow.org.au/request/4...

CASA
Full name, signature and title
https://www.righttoknow.org.au/request/4...

ASADA
Full name, signature and title
https://www.righttoknow.org.au/request/4...

It is apparent that while most agencies are consistently meeting good practice requirements in respect of the delegate information/authorisation, there are a few outliers, including the OAIC.

To that end, can the OAIC advise and provide any documents administratively that indicate any direct advice (beyond the guidelines) given to agencies and other Commonwealth entities over what their requirements are here, and whether the OAIC has ever conducted a scan itself of s 26 SORs (outside of FOI IC) for compliance.

If the OAIC is aware of any IC decisions that touch on this too, I would appreciate the case reference.

Yours faithfully,

Kieran

Stephanie Johnson left an annotation (August 21, 2018)

Kieran,

You are mistaken as to what section 26(1)(b) of the FOI Act says. While it states that the decision maker must include their name, it does not require the decision maker to include their full legal name. This means that a first name, or initials and a surname, do meet the requirements of the legislation. There is not further guidance provided by the OAIC that requires a person's full legal name to be included in a decision.

Similarly, their 'designation' may well be 'authorised FOI decision maker'. You have assumed that FOI decision makers have a title other than "FOI Decision maker" that should be included.

Good luck.

Steph

Stephanie Johnson left an annotation (August 21, 2018)

Kieran,

Further, FOI decision makers are not 'delegates' of the agency head. There is no delegation power in the FOI Act. There is only the power for the Agency Head to 'authorise' staff to act as decision makers.

Accordingly, your quote of the AGS Legal Briefing (about the requirements of delegates) may be misguided.

Good luck

Steph

Kieran (Account suspended) left an annotation (August 21, 2018)

I note your unsolicited opinion Steph, I’m just confused as to its proposed value, given you have not provided any supporting evidence for it, beyond the opinion itself.

If you believe what you claim, you must have a reasonable basis to do so, and that requires some evidence in support (relevant evidence is case law, or legal opinion from a published article).

It is important to remember annotations on Right to Know are, as per TOS, required to helpful to the OP, not avenues of debate or assertion of unsupported opinions.

I note you have previously left annotations on other RtK FOIs that make claims which are either unsupported by evidence or indeed are contradicted by the evidence. This is unhelpful to requesters, and I recommend you consider how you approach future annotations, so they are consistent with the RtK TOS.

It is important to remember if a proposed annotation does not assist the requester, and rather is a vehicle for passing unsupported opinions, it should be not be uploaded.

Kind Regards

Kieran

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Dear Sir

I acknowledge receipt of your request. A response to your request for
information will be provided at a later date.

Please contact me if you have any questions.

Regards

Caitlin Emery

Caitlin Emery | Senior Lawyer | Legal Services

Office of the Australian Information Commissioner

Level 3, 175 Pitt Street, SYDNEY NSW 2000

GPO Box 5218 SYDNEY NSW 2001| [1]www.oaic.gov.au

Phone: +61 2 8231 4225 | E-mail: [2][email address]

Protecting information rights – advancing information policy

[3]OAIC banner for email sig

-----Original Message-----
From: Kieran <[FOI #4753 email]>
Sent: Monday, 20 August 2018 4:56 PM
To: FOIDR <[email address]>
Subject: Freedom of Information request - Request for Information -
Requirements for exercises of delegation under FOI Act

Dear Office of the Australian Information Commissioner,

This is to be treated as a administrative request for information.

s 26(1)(b) of the FOI Act requires FOI delegates to state their name and
designation when using their delegated powers (delegated from their
Secretary or CEO) to issue s 26 Statement of Reasons. Similarly, as a
formal legal delegation, involving a statutory power, “a delegate
literally acts in his or her own name, and signs documents in his or her
own name as a delegate of the delegator” (see Australian Government
Solicitor, Legal Practice Briefing No 74 (14 December 2004))

Despite this, a review I conducted of the most recent s 26 statement of
reason letters published on Right to Know, for all the Commonwealth
agencies or businesses listed on their front page (which is the most
frequently contacted entities) identified that of the 28 Commonwealth
entities there, only 21 of those entities correctly closed those s 26
statement of reasons with a signature block that contained the full name
of the officer involved, their signature, and their position title.

7 agencies/entities were non-compliant (and ironically the OAIC was one of
them), being the Department of Home Affairs (no position title, just use
of ADM), Human Services (first name only, no signature, and ADM only), ATO
(minor - only provided first initial and surname, but signature and
position title provided), Defence (no signature or position title, just
ADM), ASIC (no signature and ADM only), OAIC (no signature or position
title, not even ADM), and Veteran Affairs (only position number and ADM).

Veteran Affairs was the only one agency using position number instead of a
name (whether partial or full), with no other required detail provided
(ADM is simply insufficient).

Details and link to the decision of all agencies surveyed follows:

Department of Home Affairs

Full name, signature, no position title (just ADM)
[4]https://apac01.safelinks.protection.outl...

Department of Human Services

First name only, no signature, no position title (just ADM)
[5]https://apac01.safelinks.protection.outl...

ATO

Initial & Last Name, signature, position title
[6]https://apac01.safelinks.protection.outl...

AFP

Full name, signature, and position title
[7]https://apac01.safelinks.protection.outl...

Attorney-General’s

Full name, signature and position title
[8]https://apac01.safelinks.protection.outl...

PM&C

Full name, signature and position title
[9]https://apac01.safelinks.protection.outl...

DFAT

Full name, signature, and position title
[10]https://apac01.safelinks.protection.outl...

Health

Full name, signature, and position title
[11]https://apac01.safelinks.protection.outl...

Defence

Full name, not signed, ADM only
[12]https://apac01.safelinks.protection.outl...

Finance

Full name, signature, and position title
[13]https://apac01.safelinks.protection.outl...

APRA

Full name, signature and position title
[14]https://apac01.safelinks.protection.outl...

ASIC

Full name, no signature, ADM only
[15]https://apac01.safelinks.protection.outl...

Treasury

Full name, signature, and position title
[16]https://apac01.safelinks.protection.outl...

AEC

Full name, signature, position title
[17]https://apac01.safelinks.protection.outl...

Environment and Energy

Full name, signature, and position title
[18]https://apac01.safelinks.protection.outl...

ABS

Full name, signature, and position title
[19]https://apac01.safelinks.protection.outl...

OAIC

Full name, no signature, no title (not even ADM)
[20]https://apac01.safelinks.protection.outl...

Communications and the Arts

Full name, signature and position title
[21]https://apac01.safelinks.protection.outl...

Jobs and Small Business

Full name, signature and position title
[22]https://apac01.safelinks.protection.outl...

Social Services

Full name, signature, and position title

[23]https://apac01.safelinks.protection.outl...

Industry, Innovation and Science