Role evaluation
Dear Australian Public Service Commission,
I am making this request for access to documents that may be in the control of the Office of the APSC. If the documents are not in the control of the APSC, do not transfer this request to the agency that officials in the APSC believe has the documents. If the requested documents are not in the control of the APSC, please simply refuse access to the documents under section 24A of the FOI Act.
As to my right to elect whether I would like the Office of the Commonwealth Ombudsman to deal with this request and not transfer it to another agency, I refer you to the Federal Court of Australia’s judgment in Bienstein v Attorney-General [2007] FCA 1174, [38]. The law on the matter is settled and clear.
Under the Freedom of Information Act 1982 (Cth), I request access to the role evaluation record, prepared between 1 January 2017 and 31 December 2020, that shows that the SES Band 1 classified National Judicial Registrar & District Registrar role in the Queensland District Registry of the Federal Court was, in the light of the work value of the group of duties described in the work level standards and a proper job analysis, lawfully reclassified and allocated an Executive Level 2 classification for the purposes of rule 9 of the Public Service Classification Rules 2000 (Cth).
Yours faithfully,
Marius
OFFICIAL
Dear Marius,
Please find attached a consultation notice in relation to your recent
freedom of information 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
t: 02 6202 3813 w: [1]www.apsc.gov.au
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______________________________________________________________________
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Dear Melanie McIntyre,
Having considered your letter, I am not inclined to and, thus, will not revise my FOI request.
The reasons you have provided are incoherent and irrelevant. Also, the time estimate you have provided to process the request is beyond excessive. The estimate is orders of magnitude beyond what would reasonably be required to handle such a straightforward request.
Paragraphs 13 and 14 of your decision suggest to me that you have not read my FOI request well enough.
Paragraph 11 is just strange. Why would the contents of a role review document, that would contain no personal information (it’s a review of a role, which is independent of any person who holds the role), need to be redacted? It's an impersonal document that, in the ordinary course, would be made available to any member of the public. Also, why would there be such a “volume of material” in respect of a role review for a single role that you would need 78 hours to process the request?
Of what relevance is paragraph 12 to my FOI request? The FOI process is not suspended because an agency has a priority matter to deal with. If this were the case, then, by way of example, Services Australia would have suspended all FOI processing during the Robodebt Royal Commission. That did not happen. There is no basis in law for what you have noted in paragraph 12 of your decision.
There’s nothing difficult about the request. I note that an article published in The Australian on 10 February 2022 provides the following in relation to the role review of the SES Band 1 classified National Judicial Registrar & District Registrar role in Queensland:
Ms McMullen’s investigation concluded that “a role review process … had resulted in certain positions being found suitable for either (classification)” (i.e. Legal 2 or SESB1).
(See: https://www.fedcourt.gov.au/__data/asset...)
Ms McMullen was provided with the role review document/s and made a material decision based on the role review document/s. It’s just a matter of providing the role review document (or documents), isn’t it? Why would there be a practical refusal ground in respect of a request for documents in relation to a single role review process?
You are clearly aware that there have been decisions made in respect of the same document/s, which means the documents would also be close to hand. And if there have been decisions made in respect of the same document/s by the APSC, what's this about needing 78 hours to process the request?
All a bit odd.
Yours sincerely,
Marius
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Our reference: MR23/01386
By email: [FOI #10761 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 MR23/01386.
Yours sincerely
Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
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OFFICIAL
Good afternoon Marius,
Please find attached a decision notice in relation to your recent freedom
of information 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
t: 02 6202 3813 w: [1]www.apsc.gov.au
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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
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Our reference MR23/01386
Agency reference LEX 679
By email: [1][FOI #10761 email]
Dear Marius M,
I write regarding your IC review request of 17 November 2023.
That day you wrote to the OAIC seeking a review of a decision you said was
deemed on 16 November 2023. That same day, the APSC provided you with a
substantive decision (see attached).
The APSC note that as they issued a consultation under 15AB of the FOI Act
on 13 November, which you responded to that day, it had the effect of
extending the statutory processing timeframe by one day.
I’d be grateful if you could please advise whether you wish to request an
IC review of the APSC’s attached decision, and if so the grounds for that
review.
Can you please respond with this information by 6 February 2024.
Regards,
Heath
[2][IMG] Heath Baker (He/him)
Director | FOI Branch
Office of the Australian Information Commissioner
GPO Box 5288 Sydney NSW 2001 | oaic.gov.au
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OAIC reference - MR 23/01386
APSC reference - LEX 679
Dear Heath,
On 16 October 2023 I made an FOI request to the APSC.
The decision in response to my FOI request would have been due on 15 November 2023 in the ordinary course of events.
On 13 November 2023 at 9:15:34 am Melanie McIntyre provided me with a consultation notice: https://www.righttoknow.org.au/request/1....
On 13 November 2023 at 9:13:28 pm I responses to Melanie McIntyre’s consultation notice: https://www.righttoknow.org.au/request/r....
The period starting on the day an applicant is given a notice under subsection (2) and ending on the day the applicant does one of the things mentioned in paragraph (6)(b) or (c) is to be disregarded in working out the 30 day period mentioned in paragraph 15(5)(b): section 24AB(8) of the FOI Act.
Therefore, 13 November 2023, which is the period starting on the day I was given a consultation notice as well as the day ending on the day that I did something mentioned in section 24AB6(c), is to be disregarded in working out the 30 day period mentioned.
Disregarding 13 November 2023 means that the decision was due on 16 November 2023. The APSC failed to provide a decision on 16 November 2023. Therefore a deemed refusal decision took effect at the end of 16 November 2023: section 15AC of the FOI Act.
On 17 November 2023 I applied for IC review of the deemed refusal decision, which is my right under the FOI Act.
A practical refusal decision was not made in accordance with the time frame set out in the FOI Act. The so-called decision was provided after the time frame allowed under the FOI Act. Therefore there is no valid practical refusal decision. The decision under review is the APS Commissioner’s deemed refusal decision.
It’s not necessary for me to address the “substantive” decision because it is not the legal decision. Having said that, the “substantive” decision that Melanie McIntyre provided is preposterous.
The Federal Court has noted that the document that I seek does not exist: https://www.righttoknow.org.au/request/r.... Even though the Federal Court has said that the document does not exist, journalists at The Australian quoted an official in the APSC noting that the document does exist because she based a decision on it: https://archive.org/download/2022-02-10-....
Melanie McIntyre claims that the Federal Court “is the agency most likely to hold the records you are seeking” and for that reason stated that processing my request “would be an unreasonable diversion of the Commission’s resources”. But the Federal Court does not have the document and an official in the APSC has been quoted in The Australian to have a copy of the document that I have sought. So my request was made to the correct agency. More importantly, Melanie McIntyre’s opinion about another agency having the document has no relevance to the issue of a practical refusal ground existing.
Melanie McIntyre also claimed that processing my “request would be a substantial diversion of the Commission’s resources because many of these documents relate to previous FOI requests or related or similar matter”. That can’t be right. I asked the APSC for the role evaluation record, prepared between 1 January 2017 and 31 December 2020, that shows that the SES Band 1 classified National Judicial Registrar & District Registrar role in the Queensland District Registry of the Federal Court was, in the light of the work value of the group of duties described in the work level standards and a proper job analysis, lawfully reclassified and allocated an Executive Level 2 classification for the purposes of rule 9 of the Public Service Classification Rules 2000 (Cth). This document has nothing to do with FOI requests.
On those bases, Melanie McIntyre said that “the amount of time estimated to process your request remains the same as the consultation notice”, which was 78 hours: https://www.righttoknow.org.au/request/1.... That’s just not correct. It will not take 78 hours to make a decision in relation to a role evaluation record for a single role in the Federal Court, which an official in the APSC noted was the basis for a decision she made that was the subject of critical comment by a Federal Court judge: https://archive.org/download/2022-02-10-.... The estimate is clearly preposterous and is based on a flawed premise, which is that processing my “request would be a substantial diversion of the Commission’s resources because many of these documents relate to previous FOI requests or related or similar matter”.
All of what I have said about the “substantive” decision is beside the point because it is not the legal decision. The legal decision is the deemed refusal decision and that is the decision under review if and until a further decision is made according to law.
Yours sincerely,
Marius
Our reference MR23/01386
Agency reference LEX 679
By email: [FOI #10761 email]
Dear Marius M,
Thank you for your below email response.
We will proceed with your IC review in relation to the deemed access refusal decision dated 16 December 2023, and will treat the substantive decision of 17 November 2023 as submissions.
Kind Regards
Lisa Ktenidis (pronouns she/her)
Assistant Director FOI Regulatory Branch to FOI Branch
Office of the Australian Information Commissioner
Sydney| GPO Box 5288 Sydney NSW 2001
P 1300 362 992 E [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.
Subscribe to Information Matters
Our reference: MR23/01386
Agency reference: LEX 679
Marius M
By email: [1][FOI #10761 email]
Dear Marius M
Thank you for your application for review. We have today informed the
Australian Public Service Commission 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 Australian
Public Service Commission.
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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Our reference: MR23/01386
Agency reference: LEX 679
Agency OAIC reference: LEX 811
By email: [1][FOI #10761 email]
Information Commissioner review application about the Australian Public
Service Commission
Dear Marius M,
I refer to the application for Information Commissioner review (IC review)
of a deemed access refusal decision made by the Australian Public Service
Commission (the Agency) under the Freedom of Information Act 1982 (Cth)
(the FOI Act).
After further review of the IC review application, I note that:
* On 17 November 2023, the Agency notified the FOI applicant of their out
of jurisdiction decision via the nominated Right to Know (RTK)
electronic address ‘[FOI #10761 email]’.
1. On 17 November 2023, the Office of the Australian Information
Commissioner (OAIC) received an IC review application which provided
the contact email address of
‘[FOI #10761 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: 12 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 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 12 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 12 June 2024, you must request more time
at the earliest opportunity and no later than 7 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 MR23/01386 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
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Our reference: MR23/01386
Agency reference: LEX 679
Agency OAIC reference: LEX 811
Dear Ms Furlong,
Thank you for your email.
I will be in touch with a substantive response soon.
Yours sincerely,
Marius
☺
[1]Office of the Australian Information
Commissioner Reference Code: P3D757ZQ
You submitted a form called: Enquiry Form
Your form reference code is: P3D757ZQ
Your submission reference number is: 56892805
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received you should contact the agency that provides the form. These
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Please see the attached PDF for a copy of your form submission.
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[1]Office of the Australian Information
Commissioner Reference Code: P3D757ZQ
You submitted a form called: Enquiry Form
Your form reference code is: P3D757ZQ
Your submission reference number is: 56892805
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.
Please see the attached PDF for a copy of your form submission.
Office of the Australian Information Commissioner
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GPO Box 5218, Sydney NSW 2001
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Our reference: EN24/05155
Dear Marius M
Thank you for your enquiry.
The [1]Office of the Australian Information Commissioner (the OAIC)
receives a large quantity of written enquiries each day. An Enquiries
Officer will be assigned to your enquiry and will be in contact soon.
We generally aim to respond to written enquiries within ten working days.
However, where we experience higher volumes of written enquiries, there
may be a delay of up to 4 weeks. If your enquiry is urgent and requires an
immediate response, please telephone us on 1300 363 992 and quote your
reference number. More complex phone enquiries may require a written
response and may still take some time.
To keep in touch with the OAIC, you can go to the [2]sign-up page on our
website and sign up to receive our newsletter. You can also find
additional information on our website [3]www.oaic.gov.au.
Yours sincerely
Enquiries Team
Office of the Australian Information Commissioner
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Our reference: MR23/01386
Agency reference: LEX 679
Agency OAIC reference: LEX 811
Dear Ms Furlong,
Thank you for your email.
In your email dated 29 May 2024 you have noted that the OAIC does not have sufficient evidence to be satisfied that I was the FOI applicant and that, therefore, whether I had a right to apply for IC review. You have then noted that if I wish to proceed with this IC review, I should provide 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 also note that I may also upload your correspondence dated 29 May 2024 to the request on Right to Know and provide you with confirmation of this.
Sadly, it is not possible to upload screenshots on Right to Know. That is because Right to Know only permits the entry of plain text messages. Nothing may be attached to an FOI request or correspondence.
That said, I have taken the screenshot of the “My requests” page and have provided that image to the OAIC using the OAIC’s website.
I submitted the screenshot at about 5:30 PM Eastern Standard Time. I was provided with a form reference for the submission, which is P3D757ZQ. The submission reference is 56892805.
Please let me know if you need anything more from me, or if there is anything more I can assist with, or if you are not satisfied with my response. I wouldn’t want my IC review request finalised on account of some misunderstanding.
Just out of curiosity, what makes you doubt that I submitted the original FOI request? I ask not to be critical but to understand why you have your doubts, which I will do my best to dispel.
Yours sincerely,
Marius
OFFICIAL
Dear Applicant
We have been notified by the Office of the Australian Information
Commissioner (‘OAIC’) that you have sought Information Commissioner review
of the Australian Public Service Commission’s (‘the Commission’) primary
decision dated 17 November 2023.
We understand that you have sought IC review of the Commission’s primary
decision because you are not satisfied that a practical refusal reason
exists in relation to the processing of your request.
Noting the passage of time since the Commission made its decision, we are
writing to engage with you on your application, in the hopes of resolving
your concerns or at least narrowing the issues in dispute. To this end, we
would be grateful if you could provide us with some further comments
regarding why you disagree with the Commission’s decision and any action
you would like us to take in order to address your concerns. Should you be
willing to revise the scope of your request to specific documents, it
would be helpful if you could describe what documents you are now seeking
access to.
We would appreciate if you could respond to us by Tuesday, 18 June 2024
with any further submissions you wish to make. Please note, we will
provide a copy of this correspondence and any response received from you
to the OAIC to provide an update on our engagement with you.
Should you have any questions regarding this email, please contact us at
[1][APSC request email] and quote reference number LEX 811.
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: [2]www.apsc.gov.au
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This email and any attachments may contain confidential or legally
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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.
From: FOI
Sent: Friday, 17 November 2023 3:56 PM
To: [FOI #10761 email]
Subject: LEX 679 - Notice of Decision [SEC=OFFICIAL]
OFFICIAL
Good afternoon Marius,
Please find attached a decision notice in relation to your recent freedom
of information 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
t: 02 6202 3813 w: [7]www.apsc.gov.au
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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.
______________________________________________________________________
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5. https://www.facebook.com/AusPublicService/
7. http://www.apsc.gov.au/
9. https://twitter.com/PublicServiceAU
10. https://www.facebook.com/AusPublicService/
Dear FOI,
I refer to your email of 6 June 2024.
In your email you note that you understand that I have sought IC review of the Commission’s primary decision because I am not satisfied that a practical refusal reason exists in relation to the processing of my request. Technically, that is not correct. I have sought IC review of the refusal decision deemed to have personally been made by the Australian Public Service Commissioner, Dr Gordon de Brouwer. That is because a decision was not made available to me within the statutory time frame. Lisa Ktenidis, assistant director in the OAIC, has accepted that my application is one for review of Dr de Brouwer's deemed refusal decision, noting that the OAIC "will proceed with [the] IC review in relation to the deemed access refusal decision dated 16 December 2023, and will treat the substantive decision of 17 November 2023 as submissions": https://www.righttoknow.org.au/request/r....
I did, on 23 January 2024, provide the OAIC with submissions in relation to Melanie McIntyre's purported decision setting out her belief that a practical refusal ground exists: https://www.righttoknow.org.au/request/r....
As I explained in my submissions to Melanie McIntyre on 13 November 2023, there are substantive and glaring flaws in her reasons claiming that a practical refusal ground exists in relation to my FOI request: https://www.righttoknow.org.au/request/r....
In your email of 6 June 2024, you appear willing to come to a lawful resolution of my request for documents.
To resolve my request for access to documents, I rely on:
a) my submissions to Melanie McIntyre, dated 13 November 2023: https://www.righttoknow.org.au/request/r... and
b) my submissions to the Heath Baker at the OAIC, dated 23 January 2024: https://www.righttoknow.org.au/request/r....
Those submissions set out why Melanie McIntyre's reasons for a practical refusal ground are not plausible or believable.
I ask, as I did on 16 October 2023, that the APSC provides access to the role evaluation record, prepared between 1 January 2017 and 31 December 2020, that shows that the SES Band 1 classified National Judicial Registrar & District Registrar role in the Queensland District Registry of the Federal Court was, in the light of the work value of the group of duties described in the work level standards and a job analysis, reclassified and allocated an Executive Level 2 classification for the purposes of rule 9 of the Public Service Classification Rules 2000 (Cth).
Yours sincerely,
Marius
OAIC Reference: MR23/01386
Agency Reference: LEX 679
Agency OAIC Reference: LEX 811
Dear Ms Furlong,
By way of update, the APSC reached out to me on the 6th of June 2024 noting that the OAIC has contacted the APSC: https://www.righttoknow.org.au/request/r...
In that email, the FOI officer in the APSC noted that the APSC wanted to resolve my concerns about its handling of my FOI request of the 16th of October 2023.
I have responded to the APSC's email of 6 June 2024, which you can find published on Right to Know: https://www.righttoknow.org.au/request/r...
Please do let me know if you have any questions in the meantime.
Yours sincerely,
Marius
OAIC Reference: MR23/01386
Agency Reference: LEX 679
Agency OAIC Reference: LEX 811
Dear FOI,
In your email of 6 June 2024, you noted that you wanted to resolve the issues arising from the deemed refusal decision in relation to my request for documents.
Would you please provide an update on when I can expect to receive lawful reasons for decision that resolve the issues in the APSC's handling of my FOI request?
Yours sincerely,
Marius