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

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

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

Thank you.

Yours sincerely,

Marius

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

☺

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

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

OAIC Reference: MR23/01386
Agency Reference: LEX 679

Agency OAIC Reference: LEX 811

Dear FOI,

I refer to my emails of 7 June and 15 July 2024.

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:

a) acknowledge receipt of my emails of 7 June 2024 and 15 July 2024; and
b) 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

OAIC Reference: MR23/01386
Agency Reference: LEX 679

Agency OAIC Reference: LEX 811

Dear OAIC - FOI DR,

On 7 August 2024, an FOI officer in the APSC sent me an email noting that the APSC had provided submission to the OAIC in relation to MR23/01386: https://www.righttoknow.org.au/request/r....

I refer to paragraph 3.23 of the Information Commissioner's direction as to certain procedures to be followed by agencies and ministers in IC reviews. Paragraph 3.23 provides:

"In seeking submissions from agencies and ministers in support of the IC reviewable decision,
the IC will require the agency or minister to send their submissions to the applicant at the
same time as they are sent to the IC. The applicant will then have the opportunity to make
submissions in response."

Of course, the actual part of the Information Commissioner's direction as to certain procedures to be followed by agencies and ministers in IC reviews that applies to my IC review is Annexure A.1, which applies to deemed access refusal decisions.

On 8 February 2024, Lisa Ktenidis of the OAIC confirmed that the OAIC would "proceed with [the] IC review in relation to the deemed access refusal decision dated 16 December 2023 ..."

Since the OAIC has confirmed that the operative decision is a deemed access refusal decision, Annexure A.1 is the part that actually applies to this IC review.

Division 3 of Annexure A.1 of the Information Commissioner's direction as to certain procedures to be followed by agencies and ministers in IC reviews provides:

"3.1 If the agency or minister confirms that the relevant FOI request is deemed to have been refused, or fails to respond to the IC’s preliminary inquiries, a s 54Z notice will be issued notifying of the commencement of an IC review.

3.2 The s 54Z notice will be accompanied by a direction under s 55(2) of the FOI Act, requiring the agency or minister to either:

a) make a revised decision under s 55G if the decision the agency or minister intends to make will result in the giving of access to the requested documents in full and to provide the relevant decision to the applicant and to the IC; or

b) make a revised decision under s 55G if the decision the agency or minister intends to make will result in the giving of access to some of the requested documents, and to provide the relevant decision and non-exempt documents to the applicant, and to provide all relevant processing documents and the documents remaining at issue to the IC; or

c) make submissions in support of the access refusal if the agency or minister intends refusing access to the requested documents and to send those submissions to both the IC and the applicant. The agency or minister must also provide the following information and exempt documents to the IC under s 55T of the FOI Act:

• the FOI request and any correspondence that modifies its scope
• the original decision (if the decision appealed is a deemed affirmation of the original decision)
• submissions in support of the access refusal
• the names and contact details of anyone who was consulted formally under ss 15(7), 26A or 27A, or informally (including consultations with other Australian Government agencies)
• if any third parties have been notified of the IC review, a copy of the written notifications
• copies of any correspondence between the respondent and anyone who was consulted, including file notes of any relevant telephone conversations
• if the IC review involves exempt matter, a marked up, un-redacted copy of all documents identified within scope of the FOI request that is subject of IC review in an electronic format.

3.3 Agencies and ministers will have 15 business days to respond to the IC’s written direction."

Despite providing submissions to the Information Commissioner, the APSC has failed to comply with the Information Commissioner's direction as to certain procedures to be followed by agencies and ministers in IC reviews. Specifically, the APSC has not provided me with the submissions provided to the OAIC in relation to MR23/01386.

While I appreciate that it is possible that the submissions were provided prior to 26 June 2024, which is when the Information Commissioner's direction as to certain procedures to be followed by agencies and ministers in IC reviews came into effect, there is no reason, in principle, for the submissions to be withheld from me, especially because there are explicit instructions that require agencies to now provide those submissions to applicants as a matter of course.

It's been more than 9 months since the deemed refusal decision came into effect. I think it is high time to resolve this simple FOI request for a role evaluation document.

Please, as soon as possible, provide me with the submissions that the APSC provided to you in relation to MR23/01386 so that I can make sense of the APSC's position, which, as it stands, is a decision on the part of the APS Commissioner, Dr Gordon de Brouwer, to refuse access to a role evaluation document.

Yours sincerely,

Marius

OAIC Reference: MR23/01386
Agency Reference: LEX 679

Agency OAIC Reference: LEX 811

Dear Australian Public Service Commission,

On 7 August 2024, an FOI officer in the APSC sent me an email noting that the APSC had provided submissions to the OAIC in relation to MR23/01386.

I line with the Information Commissioner's direction as to certain procedures to be followed by agencies and ministers in IC reviews, please send me a copy of the submissions provided to the OAIC.

Yours sincerely,

Marius

OAIC Reference: MR23/01386
Agency Reference: LEX 679

Dear Ms O’Kearney,

1. Thank you for providing me with Melanie McIntyre’s submissions (MM subs).

2. My submissions in response are set out below.

The decision under review

3. The decision under review is a deemed refusal decision. Ms McIntyre alludes to this: MM subs, par 2.

4. Nonetheless, Ms McIntyre insists that she relies on the “Commission’s primary decision as a submission”: MM subs, par 2.

5. The so called “primary decision” is not a decision for the purposes of the FOI Act, but I will charitably engage with the contents of that document because Ms McIntyre relies on content set out in it.

Dispelling a falsehood from the start

6. At paragraph 10 of MM subs, Ms McIntyre states:

“The Applicant has indicated in their email to the OAIC of 23 January 2024 that they have previously requested the documents sought under this request from the Federal Court …”

7. That is a falsehood. Nowhere in my email of 23 January 2024 to the OAIC do I claim that I have previously requested the documents, which I am seeking from the APSC, from the Federal Court of Australia.

8. I am dispelling this falsehood because much seems to turn of this falsehood in MM subs.

Imputations about the aim of my request

9. Melanie McIntyre claims that my application “is not directed towards gaining access to documents, but rather” aimed at “agitat[ing] matters that have already been investigated investigated and dealt with” by the APSC: MM subs, par 12.

10. I have made no secret of my desire to understand how it is that an investigator stated that “a role review process … had resulted in certain positions being found suitable for either (classification)”, particularly when the agency that was being investigated has stated, unequivocally, that there is no documentary evidence of any role reviews for the purposes of rule 9 of the Public Service Rules 2000.

11. I have applied to access documents that an official in the APSC claims was the basis of a material finding of fact in an investigation. My application has been made on the basis that the agency from which the document is, or documents are, purported to have originated claims that no such documents exist. My application is aimed at, if possible, reconciling the APSC investigator’s claims about role review documents existing, and a Federal Court official’s claims that such documents do not exist.

12. The claim that my application “is not directed towards gaining access to documents” is nonsense. Ms McIntyre's or any other APSC official's beliefs about my reasons for seeking access to the document I have sought does not, subject to the FOI Act, affect my right to access the document: FOI Act, s 11(2)(b).

Objects of the FOI Act and the essentials of records management

11. In paragraph 17 of MM subs, Melanie McIntyre replicates section 3 of the FOI Act, which is a statement of the enactments objects.

12. According to the APS Academy’s “APS Essentials – Records Management” module (Module) (https://www.righttoknow.org.au/request/1...), which is a learning module that sets out the basics on how APS employees must handle documents:

a) “Records are an essential part of an accountable and transparent government that is trusted for its integrity” (Module, page 5);

b) “Records help [public servants] substantiate ... decision-making” and “gain insight from ... mistakes” (Module, page 5);

c) “Creating and managing records are mandatory obligations as a public servant” (Module, page 5);

d) “Comprehensive and accessible records are a big part of what ensures a government operates with integrity” (Module, page 5);

e) “Keeping records helps prove and defend decisions if they’re ever challenged” (Module, page 10);

f) “When [APS employees] record [their] actions, [they] all become accountable for [their] work, and can demonstrate integrity. This is essential for the protection of rights and entitlements in a transparent and trustworthy government” (Module, page 10);

g) “Corruption hides in the dark. When [public servants] follow good practices and keep records accurately, [they] demonstrate how [they] came to the decisions [they] made and the information [they] had available to [them]” (Module, page 10);

h) “Complete records prepare … decision-making for any scrutiny that may arise. They do this by identifying issues or defending against allegations related to fraud or corruption. This creates trust in the government and the public service” (Module, page 11);

i) “[Public servants’] responsibilities for recordkeeping and records management are written into Australian law” and those laws include, amongst others, the FOI Act, the Archives Act, the Public Service Act 1999 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) (Module, pages 26 – 28).

13. The APS’ most basic training resource in respect of records management contemplates that the decisions of public servants may be scrutinised under various enactments, including the FOI Act.

14. That training resource provides that it is imperative, for the sake of:

a) the integrity of decision-making processes; and

b) trust in the government and the public service; and

c) combatting corruption, which hides in the dark; and

d) demonstrating how decision makers came to the decisions they did on the basis of the information available to them,

to keep appropriate records because, based on entitlements and rights under the law, including the FOI Act, people may apply to scrutinise decisions.

15. Melanie McIntyre claims that my application is an abuse of process because I am “using the FOI process to continue to agitate complaints that have already been investigated and dealt with … by the Commission”: MM subs, par 12.

16. Ms McIntyre’s submission is not to the point. The issue is not whether the APSC investigated and dealt with a matter; the issue is whether the APSC investigated and dealt with a matter properly and according to law.

17. There is ample prima facie evidence that the investigator at the APSC did not investigate and deal with the matter according to law.

18. First, by Ms McIntyre’s own admission, the Office of the Commonwealth Ombudsman accepted a complaint about the APSC investigation and conducted an investigation into it: MM subs, par 12. Melanie McIntyre’s submission is independently corroborated by documents released by the APSC under FOI legislation: https://www.apsc.gov.au/sites/default/fi...). The complaint made to the Ombudsman was escalated to this second highest category of complaint – category 4 – by the Ombudsman: https://fedcourt.gov.au/__data/assets/pd... (see page 9).

19. Second, by the admission of the APSC’s own officials in FOI decisions, including the APSC’s Assistant Commissioner for Integrity, Performance and Employment Policy, there is no evidence that the person conducting the APSC’s investigation, Ms McMullan, engaged in any correspondence with affected individuals and witnesses during her investigation process: https://archive.org/download/lex-550-aus... https://archive.org/download/lex-547-aus... https://archive.org/download/lex-520-aus.... This is indicative of a failure to pursue reasonable lines of inquiry.

20. Third, by the admission of the APSC’s own officials, some of Ms McMullan’s conclusions in respect of her investigation have no basis in any documented materials in the APSC’s possession: https://archive.org/download/lex-511-aus... https://archive.org/download/lex-637-aus....

21. Fourth, despite Ms McIntyre’s claims about the matter being “investigated and dealt with”, the underlying allegations have been the subject of adverse public commentary and scrutiny.

22. Anthony Whealy KC, formerly both a Judge of Appeal in the NSW Court of Appeal and a Commissioner of the NSW ICAC, has publicly excoriated officials in the Federal Court about their decision to recruit a particular individual for a registrar role in the Court (https://www.ag.gov.au/node/6506), even though Ms McMullan, the APSC’s investigator, said everything was kosher in respect of that recruitment decision.

23. Andrew Greenwood, a former judge of the Federal Court of Australia, has also publicly called out the former and currents CEOs of the Federal Court for “obfuscation” in respect of their involvements in decisions relating the National Judicial Registrar and District Registrar role in Queensland: https://fedcourt.gov.au/__data/assets/pd... (see pages 7 – 8).

24. Several senators have, during estimates hearings between 2022 and 2024 before the Senate’s Legal and Constitutional Affairs Committee, questioned officials in the Federal Court about the allegations underlying the APSC’s investigation: https://archive.org/download/lcc-sbe-23-... https://archive.org/download/lcc-be-23-1... https://archive.org/download/lcc-be-23-1... https://archive.org/download/lcc-obe-22-... https://www.aph.gov.au/api/qon/downloade... https://www.aph.gov.au/api/qon/downloade... https://www.aph.gov.au/api/qon/downloade.... One Senator noted, in an article published in the Australian Financial Review on 18 August 2024 (5 days ago), that he is monitoring the progress of a corruption referral to the National Anti-Corruption Commission about the recruitment of registrars in the Federal Court.

25. All of this, prima facie, points to the fact that the APSC investigation was not conducted properly and according to law.

26. Since:

a) it is a stated purpose of the FOI Act that members of the Australian community be granted access to information held by government by providing for a right of access to documents; and

b) the APS’ most basic training resource in respect of records management contemplates that maintaining accurate records is necessary to demonstrating how decision makers came to the decisions they did on the basis of the information available to them; and

c) the APS’ most basic training resource in respect of records management contemplates that the administrative decisions of public servants may be scrutinised under various enactments, including the FOI Act; and

d) there is ample prima facie evidence that the administrative investtigation conducted by the APSC was not conducted properly or according to law; and

e) my stated purpose in submitting an FOI request to the APSC was to scrutinise the documentary evidence that Kate McMullan claimed she based a material finding of fact on for the purposes of her investigation,

Ms McIntyre’s claim that my application is an abuse of process because I have not applied to access a document in the possession of the APSC is preposterous.

The unarticulated premiss in Melanie McIntyre’s allegations of an abuse of processes

27. There is an unarticulated premiss in Melanie McIntyre’s allegation that I am abusing processes under the FOI Act.

28. The unarticulated premiss is that I have applied to the APSC for documents that do not exist.

29. The presupposition leading to the unarticulated premiss is contained in paragraph 18 of MM subs. Ms McIntyre states that “the Agency most likely to hold the documents sought by the Applicant, the Federal Court, has already undertaken extensive searches for [the] documents and has been unable to locate the documents sought”: MM subs, par 18.

30. Melanie McIntyre’s views as to which agency is most likely to hold the documents that I have sought from the APSC would, ordinarily, be of no relevance to this application for IC review because the IC review is about the documents in the possession of the APSC.

31. Melanie McIntyre’s submission that “the Agency most likely to hold the documents sought by the Applicant, the Federal Court, has already undertaken extensive searches for [the] documents and has been unable to locate the documents sought” would ordinarily be irrelevant unless Melanie McIntyre is committed to the proposition that the documents that I requested from the APSC do not exist. But if Melanie McIntyre is committed to the proposition that the documents I have requested from the APSC do not exist (the line of reasoning being that a) the Federal Court would be the source of the requested document; and b) the Federal Court has stated that the documents do not exist; and c) since the documents do not exist, the documents could not have been provided to the APSC; and d) therefore, the APSC does not have the documents), then Ms McIntyre cannot genuinely be committed to the claim that it will take 78 hours to process my FOI request.

32. If Melanie McIntyre is committed to proposition that the document I have requested from the APSC does not exist (the line of reasoning being that a) the Federal Court would be the source of the requested document; and b) the Federal Court has stated that the document does not exist; and c) since the document does not exist, the document could not have been provided to the APSC; and d) therefore, the APSC does not have the documents), then Melanie McIntyre’s position would be that:

a) she relies on “the Commission’s primary decision”, which is that there are so many documents pertaining to the role evaluation for the National Judicial Registrar and District Registrar role in Queensland, it will take 78 hours to process my FOI request: MM subs, par 2; and

b) “the Federal Court, has already undertaken extensive searches for [the] documents and has been unable to locate the documents sought”, and because what the Federal Court has stated is true [THE UNARTICULATED PREMISS], there is no role evaluation document for the National Judicial Registrar and District Registrar role in Queensland in the possession of the APSC.

33. In order for Melanie McIntyre’s argument about my IC review application being an abuse of process to be valid, her argument would have to be something like:

a) the access applicant claims to have applied to the Federal Court for 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) [THIS IS A FALSE PREMISS because, as I noted in paragraph 7 above, I have made no such claim]; and

b) the access applicant claims that the Federal Court refused to grant access to the requested document because the document does not exist [THIS IS ALSO A FALSE PREMISS because, as I noted in paragraph 7 above, I have made no such claim]; and

c) the access applicant applied to the APSC, in October 2023, for 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); and

d) as noted by the Federal Court, the document requested does not exist and, thus, was not given to the APSC and is, therefore, not in the possession of the APSC [THE UNARTICULATED PREMISS that would render the abuse of process argument reasonable]; and

e) applying to the Information Commissioner for access to a document that an agency does not have in its possession is an abuse of process; and

f) the access applicant has applied to the Information Commissioner for access to a document that is not in the possession of the APSC; and

g) therefore, the IC review application for the document that is not in the possession of the APSC is an abuse of process.

34. But that is not Melanie McIntyre’s argument. Melanie McIntyre’s original “argument” was that the APSC has 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) and, as noted in a document made available to the applicant on 17 November 2023, it will take 78 hours to process the request (5 hours to execute searches for documents, 24 hours to identify and examine documents, 27 hours to redacts documents, 9 hours to consult with third parties, 3 hours to prepare reasons, 10 hours to compile documents).

36. It cannot both be the case that:

i) the document I have requested from the APSC does not exist (the line of reasoning being that a) the Federal Court would be the source of the requested document; and b) the Federal Court has stated that the document does not exist; and c) since the document does not exist, the document could not have been provided to the APSC; and d) therefore, the APSC does not have the document); and

ii) the document that I have requested from the APSC does exist and that, as noted in a document made available to me on 17 November 2023 by Melanie McIntyre, it will take 78 hours to process the request.

37. There is an obvious contradiction in Ms McIntyre’s position.

38. While Melanie McIntyre does not state it explicitly, Melanie McIntyre’s implied position is that the document I have requested from the APSC does not exist (the line of reasoning being that a) the Federal Court would be the source of the requested document; and b) the Federal Court has stated that the documents do not exist; and c) since the documents do not exist, the documents could not have been provided to the APSC; and d) therefore, the APSC does not have the documents).

39. If Melanie McIntyre is committed to the unarticulated premiss that the document I have requested from the APSC does not exist, then there is also a clear abuse of process, being an abuse of process on Melanie McIntyre’s part.

40. If Melanie McIntyre is committed to the unarticulated premiss that the document I have requested from the APSC does not exist, why did she claim, in November 2023, that it will take 78 hours to process an FOI request for non-existent documents? Falsely claiming that a practical refusal ground exists in respect of a request for documents is an abuse of process. It is also contrary to the APS Values and the Code of Conduct, which Ms McIntyre, an SES employee, must, by personal example and other appropriate means, promote: Public Service Act 1999 (Cth), s 35(3)(c).

41. If Melanie McIntyre is committed to the unarticulated premiss that the document I have requested from the APSC does not exist, then why is she still pressing the claim that it will take 78 hours to process my FOI request in her most recent submissions (see MM subs, par 2, where Ms McIntyre states that the OAIC is treating the claim that it will take 78 hours to process my FOI request as submissions and that the most recent set of submissions are FURTHER submissions (i.e. in addition to the submissions about the 78 hours to process my FOI request))? Continuing to press a false practical refusal claim is an abuse of process.

42. If Melanie McIntyre is committed to the unarticulated premiss that the document I have requested from the APSC does not exist, then why did she not, during the informal consultation process in June 2024, simply issue reasons for decision in which she stated that the documents do not exist? Doing so was a deliberate act of drawing out an IC review process that could have been put to an end definitively by issuing a decision notice claiming that the document requested does not exist. Again, the abuse of process is patent.

43. If Melanie McIntyre is committed to the unarticulated premiss that the document I have requested from the APSC does not exist, why has she wasted Commonwealth resources preparing submissions in support of a hopelessly contradictory set of positions, and why has she wasted Commonwealth resources by forcing submissions in support of a hopelessly contradictory set of positions on officials in the OAIC? These are abuses of process.

The matter before the Information Commissioner

44. Melanie McIntyre statement that I have sought IC review of “the Commission’s finding that, following a request consultation process, a practical refusal reason still exists in relation to the request” is false: MM subs, par 5. The matter before the Information Commissioner is a review of a deemed refusal decision.

45. As it stands, the principal officer of the APSC is obligated to provide me with a statement of reasons in relation to my FOI request of 16 October 2023: FOI Guidelines, par 3.161.

46. Failing to provide a statement of reasons that accurately reflects the prevailing state of affairs in respect of the documents sought is contrary to the objectives and requirements of the FOI Act: FOI Guidelines, par 3.161.

47. My position is, and will remain, that the principal officer of the APSC, or an authorised decision maker, must furnish me with a statement of reasons that accurately reflects the prevailing state of affairs in respect of the documents sought.

48. It is not clear whether Melanie McIntyre is still committed to the proposition that it will take 78 hours to process my FOI request. It would appear that, on some level, she is committed to the contradictory proposition that the documents I have requested from the APSC do not exist (the line of reasoning being that a) the Federal Court would be the source of the requested document; and b) the Federal Court has stated that the documents do not exist; and c) since the documents do not exist, the documents could not have been provided to the APSC; and d) therefore, the APSC does not have the documents).

49. That said, I did, in paragraph 5 of these submissions, state that I will charitably engage with the contents of the so called “original decision” document, which was made available to me on 17 November 2023, because Ms McIntyre relies on content set out in it.

50. Let it be assumed for the sake of argument, and only for the sake of argument (i.e. my position remains that the issue under consideration on IC review is a deemed refusal decision), that Melanie McIntyre is committed to the proposition that it will take 78 hours to process my FOI request on account of there being so much material setting out 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).

51. On the assumption that Melanie McIntyre is committed to the proposition that it will take 78 hours to process my FOI request, shorn of dross and palaver, Ms McIntyre’s argument is:

a) the applicant is merely attempting to use the IC review process to agitate matters that have been investigated and dealt with: MM subs, par 18; and

b) the applicant is using the IC review process to support the immoderate prolongation of a personal grievance: MM subs, par 18; and

c) the applicant’s application for IC review is not a genuine application: MM subs, par 19; and

d) the applicant’s application for IC review, which is, in Ms McIntyre’s opinion, not a genuine application, is burdening the FOI system with delays: MM subs, par 19;

e) the applicant is using the IC review process to further ulterior purposes: MM subs, par 19; and

f) the applicant’s application for IC review is an abuse of process: MM subs, par 12-13;

g) therefore, it will take 78 hours to process the applicant’s request for 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).

52. The logical form of the argument is invalid. The premisses of the argument do not actually support the conclusion.

53. Furthermore, the premisses that have been proffered in support of the conclusion merely constitute a set of irrelevant ad hominem attacks.

Ad hominem attacks

54. The substance of Ms McIntyre’s submissions is almost entirely aimed at denigrating me.

55. According to Ms McIntyre, I am an abuser of statutory processes in respect of the FOI Act; a person who uses FOI processes with ulterior purposes; immoderate; someone with a personal grievance; by implication, a burden on the Commonwealth (immoderately prolonging a personal grievance); disingenuous in my application to the OAIC. Not a bit of evidence is presented in support of these denigrative claims.

56. More importantly, these ad hominem attacks are of no relevance to the actual issue under review – Gordon de Brouwer’s deemed refusal decision.

57. These ad hominem attacks are also of no relevance to the question of whether Melanie McIntyre’s claim that it will take 78 hours to process my request for 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) is actually true.

58. These ad hominem attacks have been launched against me because, it seems, Ms McIntyre cannot support her position otherwise.

59. The Directions as to certain procedures to be followed by agencies and ministers on IC review make clear that the “OAIC expects that applicants and agencies will engage with the IC review process, with respect and courtesy”: Directions, par 2.7.

60. Denigrating me with irrelevant ad hominem attacks is disrespectful and discourteous. I respectfully request that Melanie McIntyre no longer denigrate me by attacking my character and motivations. I also ask the OAIC to remind Melanie McIntyre of her duties under the Directions.

The weight to be attributed to the submissions

61. Melanie McIntyre’s approach in her submissions is nothing short of disrespectful.

62. Her submissions are, in almost every material respect, irrelevant.

63. Melanie McIntyre has not demonstrated that her claims that it will take 78 hours to process the FOI request are true.

64. It would also appear that she is committed to the view that the documents I have requested from the APSC do not exist (the line of reasoning being that a) the Federal Court would be the source of the requested document; and b) the Federal Court has stated that the document does not exist; and c) since the document does not exist, the document could not have been provided to the APSC; and d) therefore, the APSC does not have the document).

65. The material statement in her submissions are contradictory and confused.

66. Melanie McIntyre’s submissions should be afforded the weight they deserve – very little.

Conclusion

67. While not entirely clear because of the contradictory nature of the propositions proffered in Melanie McIntyre’s submissions, it would appear that Melanie McIntyre is committed to the proposition that the document that I have requested access to does not exist and, thus, is not in the possession of the APSC. If that is so, reasons for access refusal should be issued by the APSC swiftly. If that is not so, I request that the deemed refusal decision be replaced with a decision granting access to the requested document. For reasons that I already provided on 13 November 2023 and 23 January 2024, I do not believe Melanie McIntyre’s claim that it will take 78 hours to process my request for access to a role evaluation document.

68. Finally, I have shown that my application is aimed at scrutinising the evidence upon which a material issue of fact in an APSC investigation is based. I have shown that there is ample prima facie evidence that suggests that the APSC’s investigation was not proper and not conducted according to law. I have shown, in the light of the law and the APS Academy’s own basic training materials, that my application is not an abuse of process.

69. I note that Melanie McIntyre’s request to end this IC review process is unwarranted because her claim that the IC review is an abuse of process is actually unsubstantiated and supported only by irrelevant ad hominem attacks against me.

Yours sincerely,

Marius

OAIC Reference: MR23/01386
Agency Reference: LEX 679

Dear Australian Public Service Commission,

I draw your attention to my submissions in response to Melanie McIntyre's submissions, which were provided to the OAIC: https://www.righttoknow.org.au/request/r...

Yours sincerely,

Marius

OAIC Reference: MR23/01386
Agency Reference: LEX 679

Dear Ms O’Kearney,

I have drawn my submissions to the attention of the APSC's FOI team: https://www.righttoknow.org.au/request/r...

I have done this in line with the IC Commissioner's directions, which provides that submissions sent by an access applicant to the OAIC should also be shared with the agency from which documents have been sought under the FOI Act.

Yours sincerely,

Marius