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

OAIC Reference: MR23/01386

Response to APSC's further submissions

Dear Ms O’Kearney,

1. I refer to the APSC’s further submissions in support of claiming a practical refusal exists under s 24 of the FOI Act: https://www.righttoknow.org.au/request/1.... Those further submissions were sent to me on 21 November 2024.

2. Please find my comments in response to those further submissions set out below.

Rationale for my access request

3. On 16 October 2023, I applied to the APSC 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).

4. I applied to the APSC 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) because, according to a report made available under the Freedom of Information Act 1982 (Cth) by the Commonwealth Ombudsman (https://archive.org/details/pid-2020-400... – see page 2 of 14), Kate McMullan had made the following materials findings of fact:

“Relevant Evidence

The material provided by FCA does indicate that [QLD District Registrar] and [WA District Registrar] applied for SESB1 positions and were ultimately placed into Legal 2 positions. However, material provided by FCA also indicates that, following advertisement of these positions and the finalisation of the recruitment process, a role review was undertaken by FCA. The evidence provided indicates that as a result of a role review, a determination was made that NJR positions could be held at the SESB1 level in some registrars and at the Legal 2 level is other registrars …”

5. According to correspondence made available under the Freedom of Information Act 1982 (Cth) by the Commonwealth Ombudsman (https://archive.org/details/pid-2020-400... – see page 11 of 14), Kate McMullan also wrote to the Chief Executive of the Federal Court, noting:

“Between 10 September 2020 and 27 October 2020 I sought, and you provided, information about [the engagements of … National Judicial Registrars and District Registrars in the FCA]. The information the FCA provided included extensive information about each recruitment process, relevant gazettal information and a role review process that had resulted in certain positions being found suitable for either a Legal 2 or SESB1 position, depending on the relative complexity and work load in relevant registries.”

6. The substance of Kate McMullan’s correspondence with Sia Lagos, the Chief Executive of the Federal Court, was reported in The Australian on multiple occasions: see, for example, https://fedcourt.gov.au/__data/assets/pd..., pages 7 – 8.

7. Another FOI applicant applied to the Federal Court of Australia 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), but was refused access because the role evaluation record does not exist.

8. Since Kate McMullan claimed that she had been provided with evidence of the role evaluation / role review, and the Federal Court claimed that there was no documentary evidence of that role evaluation / role review, naturally, I applied to the APSC for access to that document in order to reconcile Kate McMullan’s claims that she was provided with that evidence despite officials in the Federal Court claiming that the record of the lawful role evaluation / role review does not exist.

9. That is the context in which the FOI application was made to the APSC.

The decision under review

10. As I noted in paragraphs 3 – 5 of my submissions of 23 August 2024:

a) The decision under review is a deemed refusal decision taken to have been made by the APSC’s principal officer, Dr Gordon de Brouwer; and

b) Melanie McIntyre, the APSC’s General Counsel, alluded to the fact that the decision under review was Dr Gordon de Brouwer’s deemed refusal decision in paragraph 2 of her submissions: https://www.righttoknow.org.au/request/1....

11. Since the decision under review is Gordon de Brouwer’s deemed refusal decision, the APSC should focus on dealing with that deemed refusal decision. That is not what the APSC has done.

12. Nonetheless, I will engage charitably with the APSC’s further submissions in support of claiming a practical refusal exists under s 24 of the FOI Act.

Claiming that a practical refusal exists – the law

13. The APSC claims that processing my request would substantially and unreasonably divert the resources of the APSC from its other operations.

14. Reliance is, clearly, placed on subparagraph 24AA(1)(a)(i) of the FOI Act, which provides that “a practical refusal reason exists in relation to a request for a document if the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations.” In other words, the work involved in processing the request would substantially and unreasonably divert the resources of the AGENCY, and not SOME PART of the agency.

15. In making a decision on whether the APSC’s claim that a practical refusal reason exists because the work involved in processing the request would substantially and unreasonably divert the resources of the APSC from its other operations, the decision maker in the OAIC must stand in the shoes of the APSC decision maker and have regard to the evidence before them: ‘ACW’ and Australian National Maritime Museum (Freedom of information) [2023] AICmr 4, [10].

16. That decision making task comprises of three elements, each of which was identified by FOI Commissioner Leo Hardiman KC PSM in ‘ACW’ and Australian National Maritime Museum (Freedom of information) [2023] AICmr 4, [10]. Those elements are:

a) first, whether a request consultation process has been undertaken in accordance with s 24AB of the FOI Act; and

b) second, if it is determined that a request consultation process has been validly undertaken, the OAIC decision maker must determine whether they are ‘satisfied’ that the work involved in processing the applicant’s request (as revised, if at all, during the request consultation process) would ‘substantially’ divert the resources of the agency from its other operations; and

c) third, if it is determined that the request would substantially divert he resources of the agency, the OAIC decision maker must determine whether they would also ‘satisfied’ that the work involved in processing the applicant’s request would ‘unreasonably’ divert the resources of the agency from its other operations.

17. Clearly, the first of these elements has not been satisfied.

18. As I explained to Heath Baker on 23 January 2024 https://www.righttoknow.org.au/request/r...

“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... 679 Consultation Notice.pdf?cookie_passthrough=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.”

19. Therefore, a request consultation process was not undertaken in accordance with s 24AB of the FOI Act. The first element in FOI Commissioner Hardiman’s analysis has not been met. Consideration of the issues under IC review must come to an end here, which is to say that the second and third elements identified by FOI Commissioner Hardiman need not be considered.

20. That said, I am aware that another FOI Commissioner, Dr James Popple, has held that a failure to perfectly set out the requirement on a section 24AB notice to an applicant may be “cured” by the FOI Commissioner or a delegate “conducting a request consultation process with the applicant as part of [the] IC review”: ‘AP’ and Department of Human Services [2013] AICmr 78, [27].

21. The rationale offered by Dr Popple was that “[s]ection 55K(2) of the FOI Act provides that, ‘[f]or the purposes of implementing a decision on an IC review, the Information Commissioner may perform the functions, and exercise the powers, of a person who made the IC reviewable decision’”:‘AP’ and Department of Human Services [2013] AICmr 78, footnote 5.

22. While it may be open to the FOI Commissioner or her delegate to “cure” procedural defects, substantive deviations cannot be “cured” if such cure would be contrary to the FOI Act.

23. Section 55K(1) of the FOI Act provides that after undertaking an IC review, the Information Commissioner must make a decision in writing:

a) affirming the IC reviewable decision; or

b) varying the IC reviewable decision; or

c) setting aside the IC reviewable decision and making a decision in substitution for that decision.

24. The only decision that the Commissioner or her delegate may affirm, vary or set aside is the IC reviewable decision: FOI Act, ss55K(1). The IC reviewable decision is Dr Gordon de Brouwer’s deemed refusal decision. That is beyond dispute and has been explicitly accepted by both:

a) Melanie McIntyre, the General Counsel of the APSC, in paragraph 2 of her submissions: https://www.righttoknow.org.au/request/1... and

b) Ms Lisa Ktenidis, Assistant Director FOI Regulatory Branch to FOI Branch, who, in an email dated 8 February 2024, noted that the OAIC “will proceed with [the] IC review in relation to the deemed refusal decision dated 16 December (sic) 2023, and will treat the substantive decision (sic) of 17 November 2023 as submissions: https://www.righttoknow.org.au/request/r....

25. In other words, as a matter of law, it is not open to the Commissioner or her delegate to entertain the APSC’s further submissions in support of claiming a practical refusal exists under s 24 of the FOI Act as submissions in support of claiming a practical refusal exists under s 24 of the FOI Act because the FOI Act explicitly provides that only the decision under review is capable of being affirmed, varied or set aside, and the decision under review is not a practical refusal decision.

26. The only statutory mechanism available to the Commissioner or her delegate under the FOI Act, by which the Commissioner or her delegate would be able to give the APSC (I stress the concept of the “agency” for the purposes of the FOI Act) a chance to advance a practical refusal decision, is section 15AC.

27. To be clear, I am not necessarily saying that the Commissioner or her delegate (I stress these identities in contrast to officials in the APSC) could not enter into a practical refusal consultation with me once the IC reviewable decision is set aside under s 55K(1)(c) of the FOI Act. What I am saying is that the APSC cannot:

a) through its authorised decision makers or principal officer (and not the Commissioner or her delegate), advance a practical refusal reason at this stage other than by relying on section 15AC of the FOI Act; and

b) make submissions in support of claiming a practical refusal exists under s 24 of the FOI Act with respect to the IC reviewable decision because the IC reviewable decision is not a practical refusal decision.

28. Only if:

a) the APSC applies to the IC, in writing, for further time to deal with the FOI request: FOI Act, s 15AC(4); and

b) the IC grants an extension of time for the APSC to deal with the FOI request: FOI Act, s 15AC(5),

would it mean that Dr Gordon de Brouwer’s deemed refusal decision would be taken to no longer apply if the APSC makes a decision, including a practical refusal decision, within the further time allowed: FOI Act, s 15AC(7).

29. Since the only statutory mechanism available to the Commissioner or her delegate under the FOI Act, by which the Commissioner or her delegate would be able to give the APSC (and I stress the APSC, and not the Commissioner or her delegate) a chance to advance a practical refusal reason, is section 15AC, I have charitably construed the so called “further submissions in support of claiming a practical refusal exists under s 24 of the FOI Act” as an application for an extension of time under section 15AC of the FOI Act.

30. Such a construction is the only one open under the law. Thus, I am compelled to adopt that construction. As promised, I will charitably engage with the submissions and will demonstrate why it would be unacceptable for the Commissioner or her delegate to grant the APSC an extension of time under section 15AC of the FOI Act.

31. Again, to be clear, I am not suggesting that it is necessarily out of the question for the Commissioner or her delegate to decide that a practical refusal reason exists in respect of my FOI request, but such a course would be open once the IC reviewable decision (i.e. Dr Gordon de Brouwer’s deemed refusal decision) is set aside (FOI Act, s 55K(1)(c)), and upon the IC review decision maker making such a decision if a proper construction of the FOI Act permits. The point is that the IC reviewable decision is Dr Gordon de Brouwer’s deemed refusal decision.

Decisions under section 55K – the law

32. There is no power under section 55K for the Commissioner or her delegate to remit an IC reviewable decision back to the APSC for the APSC to make a decision in respect of the IC reviewable decision.

33. The Commissioner or her delegate is compelled by the terms of section 55K(1) to affirm the decision, vary the decision, or set aside the decision and substitute a substantive decision in its place. Put another way, the Commissioner or her delegate cannot, under section 55K(1) of the FOI Act, decide to send the matter back to the APSC for a substantive decision. Respectfully, the first direction given in ‘AMX’ and Department of Foreign Affairs and Trade (Freedom of information) [2024] AICmr 177 at [1] was not one open to the delegate pursuant to the terms of the FOI Act.

34. That the Commissioner or her delegate cannot, under section 55K(1) of the FOI Act, decide to send the matter back to the APSC for a substantive decision is both evident from the language of the FOI Act, as well as the decisions of former Commissioners.

35. As noted, paragraph 55K(1)(c) provides that, after undertaking an IC review, the decision maker must make a decision in writing setting aside the IC reviewable decision and making a decision in substitution for that decision.

36. As already noted, Dr James Popple held that certain procedural defects in respect of pratical refusal consultations may be “cured” by the FOI Commissioner or a delegate “conducting a request consultation process with the applicant as part of [the] IC review”: ‘AP’ and Department of Human Services [2013] AICmr 78, [27]. The rationale offered by Dr Popple was that “[s]ection 55K(2) of the FOI Act provides that, ‘[f]or the purposes of implementing a decision on an IC review, the Information Commissioner may perform the functions, and exercise the powers, of a person who made the IC reviewable decision’”:‘AP’ and Department of Human Services [2013] AICmr 78, footnote 5.

37. The power available to the Commissioner or her delegate in respect of an IC reviewable decision pertains to “implementing a decision on IC review” and not remitting an IC reviewable decision for implementation of a decision: FOI Act, s 55K(2).

38. Moreover, the Commissioner or her delegate is limited, if the discretion is exercised, to performing the functions, and exercising the powers, of a person who made the IC reviewable decision for the purposes of implementing a decision on IC review: FOI Act, s 55K(2). The principal officer of the Australian Public Service Commission, or any agency for that matter, does not have the power to remit a matter for decision. Therefore, the Information Commissioner or her delegate is not able to rely on subsection 55K(2) of the FOI Act to direct that a matter be remitted to an agency for the purposes of implementing the decision of the Commissioner or delegate because no such power is available to the person who made the IC reviewable decision.

39. In this instance, if the Information Commissioner or her delegate intends to set aside the deemed refusal decision made by Dr Gordon the Brouwer and, in its place, make a decision in substitution of Dr Gordon de Brouwer’s deemed refusal decision, then, respectfully, on a correct construction of the FOI Act, the substantive decision in substitution must be made by the Information Commissioner or her delegate.

40. To that end, reliance should be placed on:

a) section 55(2)(d) of the FOI Act; and/or

b) section 55R of the FOI Act,

to obtain, or compel production of, 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) from the APSC.

41. Once the role evaluation record for the single National Judicial Registrar & District Registrar role is obtained from the APSC, the Information Commissioner or her delegate will be able to assess the record to determine whether a practical refusal reason exists in respect of the document and, if there is no practical refusal reason, decide whether the documents should be released, and on what terms, or not released under the FOI Act.

42. Naturally, I assume that a role evaluation record does exist. Indeed, according to Melanie McIntyre, General Counsel at the APSC, there are so many documents that are within scope that it will take 78 hours to process my request. Of course, I remain, for reasons that I have repeatedly articulated during this whole process (i.e. from November 2023 to date), skeptical about that estimate.

Setting the record straight – more specific information needed to determine what documents were sought

43. On page 2 of the submissions, the APSC has noted, in respect to the OAIC’s query about “information provided to the applicant to assist revision of request”, that

“It was suggested that the FOI applicant could provide more specific information about exactly what documents they sought access to.”

44. I applied to the APSC 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).

45. In my FOI application, I have set out:

a) the date range of the document requested; and

b) the subject matter of the document requested by reference to the particular role;

c) the subject matter of the document requested by reference to the classification information associated with the particular role; and

d) the subject matter of the document requested by reference to the purpose for which the role evaluation was created (i.e. the purposes of rule 9 of the Public Service Classification Rules 2000 (Cth)).

46. My FOI application could not be clearer. It could not be more accurate. It could not be more specific. By all objective measures, the submission that my FOI application was, and remains, lacking in adequate particularity such that the document sought cannot be determined is nonsense.

Setting the record straight – transferring the request to the Federal Court

47. On page 2 of the submissions, the APSC has noted, in respect to the OAIC’s query about “information provided to the applicant to assist revision of request”, that there was a practical refusal reason because I refused to allow the APSC to transfer my request to the Federal Court, “being the agency most likely to hold relevant documents.”

48. As I have explained in:

a) paragraphs 3 – 9 of these submissions; and

b) my email to Heath Baker 23 January 2024: https://www.righttoknow.org.au/request/r... and

c) in paragraph 27 – 43 of my submissions dated 23 August 2024: https://www.righttoknow.org.au/request/r...,

the authorised officers in the Federal Court if Australia have stated that the role evaluation / role review does not exist: https://www.righttoknow.org.au/request/r....

49. Transferring the request to the Federal Court of Australia would yield a decision noting the same thing again.

50. The rationale for making my request to the APSC is, as I noted in paragraph 8 of these submissions, the following:

“Since Kate McMullan claimed that she had been provided with evidence of the role evaluation / role review, and the Federal Court claimed that there was no documentary evidence of that role evaluation / role review, naturally, I applied to the APSC for access to that document in order to reconcile Kate McMullan’s claims that she was provided with that evidence despite officials in the Federal Court claiming that the record of the lawful role evaluation / role review does not exist.”

51. Moreover, whether or not another agency is the “agency MOST LIKELY to hold the relevant document” is of no relevance to claiming the existence of a practical refusal decision. The reason advanced in the submission is misconceived.

Setting the record straight – the sensitivity of the subject matter

52. On page 2 of the submissions, the APSC has noted, in respect to the OAIC’s query about “information provided to the applicant to assist revision of request”, that there was a practical refusal reason because of “the sensitivity of the subject matter, being recruitment processes and a public interest disclosure investigation.”

53. Where the document has been identified for the purposes of paragraph 15(2)(b) of the FOI Act, for an agency, a practical refusal reason IN RELATION TO A DOCUMENT exists if, and only if, the work involved in processing the request would both substantially and unreasonably divert the resources of the agency from its other operations: FOI Act, 24AA(1)(a)(i).

54. That the document requested might have been sought by a PID investigator during a public interest disclosure investigation does not mean that a practical refusal reason exists.

55. As the Commonwealth Ombudsman noted in part 7.5.3 of the relevant Agency Guide to the Public Interest Disclosure Act 2013 (https://archive.org/details/office-of-th...

“Section 82(2) of the PID Act provides that the PID Act does not detract from any obligations imposed on an agency or a public official by any other law of the Commonwealth. Documents associated with a public interest disclosure do not attract any special exemption from the operation of the FOI Act. Requests for access to documents under the FOI Act must be considered on a case by case basis.”

56. The law is clear on the matter. In order for the APSC to claim that a practical refusal reason exists in respect of the role evaluation document that I requested, the APSC must justify that the work involved in processing the request for the role evaluation document that I requested would both substantially and unreasonably divert the resources of the agency from its other operations. Stating that the document might have been sought in the course of a public interest disclosure investigation is not enough to give rise to a practical refusal reason.

57. I also note that the APSC has made access decisions in respect of documents relating to the “sensitive” subject matter, “being recruitment processes and a public interest disclosure investigation”, which include the following documents published on the APSC’s FOI disclosure log, as well as documents published on Right to Know Australia:

a) LEX 1151, 1204: “Letter to Peter Woolcott from Ombudsman allocating PID to APSC” – https://www.apsc.gov.au/sites/default/fi...

b) LEX 1096: “Commonwealth Ombudsman letter to the Commission notifying the Commission of a Commonwealth Ombudsman investigation” – https://www.apsc.gov.au/sites/default/fi...

c) LEX 769, 864, 1073: “Section 12(4) of the Ombudsman Act letter” – https://www.apsc.gov.au/sites/default/fi...

d) “Allocation letter to Peter Woolcott” – https://www.righttoknow.org.au/request/9...

e) “Hot pocket brief – Senate Estimates” – https://www.righttoknow.org.au/request/9...

f) “Request for consent to allocate” – https://www.righttoknow.org.au/request/9...

g) “Email from Kerryn Vine Camp” – https://www.righttoknow.org.au/request/9...

h) “Decisions relating to Kate McMullan’s investigation” – https://www.righttoknow.org.au/request/1....

58. Decision makers in the APSC have had no problem releasing documents under the FOI Act in relation to the “sensitive” subject matter, “being recruitment processes and a public interest disclosure investigation.”

59. While practical refusal reasons were not raised in relation to these identified documents, which actually contain substantive information about the public interest disclosure, a practical refusal reason is being raised in respect of a document that contains no substantive content about a public interest disclosure investigation and would, ordinarily, be the subject of a full release on account of the document containing nothing secretive (a role review or role evaluation document is not a secret document and ordinarily contains no personal information because it is an assessment of a role in an agency).

60. Clearly, where decision makers in the APSC have had no problem releasing documents under the FOI Act in relation to the “sensitive” subject matter, “being recruitment processes and a public interest disclosure investigation”, the submission advanced by the APSC that a practical refusal reason exists in relation to the role evaluation document I requested is not only wrong as a matter of law but disingenuous.

Setting the record straight – the Australian Public Service Commission is a small agency

61. On page 2 of the submissions, the APSC has noted, in respect to the OAIC’s query about “information provided to the applicant to assist revision of request”, that there was a practical refusal reason because the Australian Public Service Commission is “a small portfolio agency” with limited staffing resources.

62. According to the APSC’s website (https://www.apsc.gov.au/aps-agencies-siz...), agencies are classified by the following sizes:

a) micro agency (less than 20 employees);

b) extra small agency (20 – 100 employees);

c) small agency (101 - 250 employees) (the OAIC is a small agency);

d) medium agency (251 – 1000 employees)

e) large agency (1001 – 10000 employees)

f) extra large agency (more than 10000 employees).

63. On page 4 of the submissions, the APSC has noted the following in respect of the “size of the agency (in terms of number of employees):

a) “373” in the 2022 – 2023 financial year; and

b) “515” in the 2023 – 2024 financial year.

64. The statement that the Australian Public Service Commission is a “small” portfolio agency is, in the light of the APSC’s own definitions, false. In both the 2022 – 2023 and 2023 – 2024 financial years, the APSC was a medium sized agency with considerably more human resources than the OAIC.

Setting the record straight – the Commission was working on a number of priority matters

65. On page 2 of the submissions, the APSC has noted, in respect to the OAIC’s query about “information provided to the applicant to assist revision of request”, that there was a practical refusal reason because the APSC “was working on a number of priority matters related to its functions and the Government’s public service reform agenda.”

66. The submission strikes me as disingenuous in the light of evidence. Clearly, the APSC had no problems processing several other FOI requests relating to the “sensitive” subject matter, “being recruitment processes and a public interest disclosure investigation”, during the last two financial years. That is evidenced by the APSC’s own FOI disclosure log, as well as numerous published decisions over the last 2 financial years. In fact, the documents in respect of which FOI decisions were processed were of a vastly more sensitive nature than a role evaluation document for a National Judicial Registrar & District Registrar role in the Federal Court.

67. By all objective measures, the submission that my FOI application for a single role evaluation could not be processed because the work involved in processing the request would both substantially and unreasonably divert the resources of the entire APSC from its other operations is baseless. Not a shred of evidence has been offered by the APSC to support the contention. On the contrary, the evidence available shows that officials in the APSC have had no trouble processing several other FOI requests relating to the “sensitive” subject matter, “being recruitment processes and a public interest disclosure investigation”, during the last two financial years, and publishing documents pursuant to those decisions.

Setting the record straight – the scope of the request captured other FOI requests and documents created as part of processing them

68. On page 2 of the submissions, the APSC has noted, in respect to the OAIC’s query about “information provided to the applicant to assist revision of request”, that there was a practical refusal reason because the scope of my FOI request “captured material related to the other FOI requests received, including documents created as part of processing them.”

69. On 16 October 2023, I applied to the APSC 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).

70. As I noted in my email to Heath Baker, Director of the FOI Branch in the OAIC, on 23 January 2024, the document that I requested has nothing to do with FOI requests: https://www.righttoknow.org.au/request/r....

71. Repeating nonsense about my request, which was for a role evaluation record for a National Judicial Registrar & District Registrar role in the Federal Court of Australia, does not transform that nonsense into sense. The statement my request “captured material related to the other FOI requests received, including documents created as part of processing them” is absurd. There’s nothing more to it.

Searches undertaken to justify the estimated processing times

72. For the performance of a function, or exercise of a power, under the FOI Act, a person performing those functions or exercising those powers must have regard to any guidelines issued by the Information Commissioner under section 93A of the FOI Act: FOI Act, s 93A(2).

73. The FOI Guidelines are guidelines issued by the Information Commissioner under s 93A of the FOI Act: FOI Guidelines, [1.1] – https://www.oaic.gov.au/__data/assets/pd....

74. Paragraph 3.121 of the FOI Guidelines provides:

“It is recommended that agencies examine a sample of the documents to assess the complexity of the material against whether the work involved in processing the request would constitute a substantial and unreasonable diversion of resources from the agency’s other operations. A representative sample of between 10 to 15% of the documents within the scope of the request has been considered to be an appropriate sample size for the purposes of calculating processing time when deciding whether a practical refusal reason exists. A person with appropriate knowledge or expertise should assess the sample of the documents, looking at each document as if they were making a decision on access, including indicating the number of documents that could be released in an edited form. The assessment of the sample would provide an indication of the complexity of the potential decision, that is, the number of exemptions required, the topic and content of the documents, and the number of consultations required and effort required to contact third parties based on available contact details.”

75. To be ‘satisfied’ for the purposes of s 24(1) of the FOI Act that a practical refusal reason exists, a decision maker must ‘feel’ an ‘actual persuasion’ that the reason exists. They cannot be satisfied simply as a result of a ‘mere mechanical comparison of probabilities independently of any belief in its reality’: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361. Moreover, a decision maker’s ‘satisfaction’ as to the existence of a practical refusal reason cannot be arbitrary or capricious; it must be formed ‘according to law and not humour’: Federal Commissioner of Taxation v Bayly (1952) 86 CLR 506 at 510. A diversion of an agency’s resources will be considered to be ‘substantial’ if the diversion can be characterised as ‘real or of substance’ rather than ‘large’: Farrell; Chief Executive Officer, Services Australia and (Freedom of information) [2020] AATA 2390.

76. On page 3 of the submissions, the APSC has noted, in respect to the OAIC’s query “about the total number of document” that “no searches were undertaken as it was considered these, in themselves, would be too onerous.” Melanie McIntyre, the General Counsel of the APSC, then proceeded to estimate that it will take 78 hours to process my request. And what is the basis for this estimate? Is it a sampling exercise for the role evaluation record for a single National Judicial Registrar & District Registrar role in the Federal Court? Is it on the basis of any objective evidence? Nope. It’s just some number plucked from thin air.

77. But such a capricious approach to estimation is unlawful. As Justice Jagot noted in Dreyfus and Attorney-General [2015] AATA 995, [15], while reasonable minds might differ on whether the work involved in processing a request would substantially and unreasonably divert the resources of the agency from its other operations, “[i]t is fundamental … that the process of estimation reflects the requirements of the FOI Act.” One is not permitted to approach the task such that the “capacity to decide if a practical refusal reason exists [is] used to defeat the objects of the FOI Act, including not only the right of access granted by the Act but also the express intention of the Parliament that functions and powers given by the Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and to the lowest reasonable cost”: Dreyfus and Attorney-General [2015] AATA 995, [15].

78. Despite the law, the caprice that affected Melanie McIntyre’s consultation notice is taken further in the submissions. On page 3 of the submissions, the APSC has noted, in respect to the OAIC’s query “about the total number of document”, that the “actual processing time” would be longer than 78 hours. And what is the basis of that “actuality”? Is it objective evidence? Is it relevant evidence? Is it anything of substance? Nope. It’s, contrary to law, pure caprice.

79. In fact, the evidence establishes the exact opposite of what has been submitted. But before addressing the evidence, I note that in part 10.1 of the relevant version of the APSC’s Public Interest Disclosure Procedure (https://archive.org/details/2018-09-21-a...), issued by Peter Woolcott in 2018, the following is provided:

“Where an authorised officer is required to keep a record under these procedures, the record may be kept in hard copy or in an electronic form or in both. Access to these records must be restricted to the authorised officers, delegates (including investigators) or other employees in the Commission who require access in order to perform some function under the PID Act or for the purposes of another law of the Commonwealth (for example, under the Work Health and Safety Act 2011 or the Public Service Act 1999).

Where a form is required to be sent under these procedures, a copy of the form must be kept.

All records made for the purposes of the PID Act in accordance with these procedures must be marked in accordance with the Protective Security Policy Framework (PSPF) Security Classification System and stored in the appropriate storage container.”

80. Returning to the evidence, it is clear that the statement that “no searches were undertaken as it was considered these, in themselves, would be too onerous” is false because officials in the APSC have repeatedly conducted searches of the documents relating to the public interest disclosure investigation and have published decisions and documents pursuant to those searches. I will demonstrate the falsehood of the submission that “no searches were undertaken as it was considered these, in themselves, would be too onerous” by reference to a few public examples.

81. First, on 23 March 2023, the financial year in which the APSC only had 1 employee devoting 75% of their time to FOI decision making (see page 4 of the APSC’s submissions), the APSC received an FOI request for access to any and all documents sent to 16 individuals by officials in the APSC, inviting them to interviews as part of Kate McMullan’s investigation into allegations that senior administrators in the Federal Court of Australia contravened the Code of Conduct when engaging or promoting registrars of the Federal Court of Australia: https://www.righttoknow.org.au/request/1..., pages 16 – 24.

82. Mitchell Little, an authorised decision maker, accessed the relevant record storage areas and, after conducting the relevant searches for the documents sent to 16 individuals by officials in the APSC, inviting them to interviews as part of Kate McMullan’s investigation into allegations that senior administrators in the Federal Court of Australia contravened the Code of Conduct when engaging or promoting registrars of the Federal Court of Australia, issued an access refusal decision on 24 April 2024: https://www.righttoknow.org.au/request/1..., page 19.

83. Thus, an official in the APSC, in the 2022-2023 financial year (which was the year in which the APSC only had one person who spent 75% or more of their time dealing with FOI requests) was able to identify, locate, examine and decide to refuse access to documents that were clearly of a more penetrating and sensitive nature than the document I requested access to.

84. Second, on 23 April 2024, the financial year in which the APSC only had 1 employee devoting 75% of their time to FOI decision making (see page 4 of the APSC’s submissions), the APSC received an FOI request for access to any and all:

a) correspondence between (i.e. sent to or received from) Kate McMullan and 15 persons for the purposes of the PID Investigation conducted by Kate McMullan into allegations that senior administrators in the Federal Court of Australia contravened the Code of Conduct when engaging or promoting registrars of the Federal Court of Australia; and

b) documents exchanged by Kate McMullan and the following people for the purposes of the PID Investigation conducted by Kate McMullan into allegations that senior administrators in the Federal Court of Australia contravened the Code of Conduct when engaging or promoting registrars of the Federal Court of Australia: https://www.righttoknow.org.au/request/1..., pages 34 – 42.

85. Kylie Barber, the APSC’s Assistant Commissioner for Integrity, Performance and Employment Policy accessed the relevant record storage areas and, after conducting the relevant searches for the documents exchanged between the 15 individuals and Kate McMullan, issued an access refusal decision on 24 April 2024: https://www.righttoknow.org.au/request/1..., page 36.

86. Thus, the APSC’s Assistant Commissioner for Integrity, Performance and Employment Policy was, in the 2022-2023 financial year (which was the year in which the APSC only had one person who spent 75% or more of their time dealing with FOI requests), able to identify, locate, examine and decide to refuse access to documents that were clearly of a more penetrating and sensitive nature than the document I requested access to.

87. Third, on 26 April 2023, the financial year in which the APSC only had 1 employee devoting 75% of their time to FOI decision making (see page 4 of the APSC’s submissions), the APSC received an FOI request for access to any and all documents setting out the submissions of, or containing information received from, 17 persons in response to requests for information issued as part of Kate McMullan’s investigation into allegations that senior administrators in the Federal Court of Australia contravened the Code of Conduct when engaging or promoting registrars of the Federal Court of Australia: https://www.righttoknow.org.au/request/1..., pages 43 – 49.

88. Kylie Barber, the APSC’s Assistant Commissioner for Integrity, Performance and Employment Policy accessed the relevant record storage areas and, after conducting the relevant searches for the documents exchanged between the 17 individuals and Kate McMullan, issued an access refusal decision on 24 April 2024: https://www.righttoknow.org.au/request/1..., page 46.

89. Thus, the APSC’s Assistant Commissioner for Integrity, Performance and Employment Policy was, in the 2022-2023 financial year (which was the year in which the APSC only had one person who spent 75% or more of their time dealing with FOI requests), able to identify, locate, examine and decide to refuse access to documents that were clearly of a more penetrating and sensitive nature than the document I requested access to.

90. Fourth, on 25 February 2022, the APSC received an FOI request for access to “all emails (including attachments to those emails) exchanged between Sia Lagos and Kate McMullan in relation to the investigation documented by Ms McMullan”: https://archive.org/details/pid-2020-400....

91. Giorgina Strangio, the APSC’s Assistant Commissioner for Enabling Services was able to identify, locate, examine 17 documents within scope of the request for ALL EMAILS exchanged between Sia Lagos and Kate McMullan in relation to the investigation documented by Ms McMullan, and decided to refuse access to those emails.

92. Thus, the APSC’s Assistant Commissioner for Enabling Services was able to identify, locate, examine and decide to refuse access to seventeen documents that were clearly of a more penetrating and sensitive nature than the role evaluation record for a single National Judicial Registrar & District Registrar role that I requested access to.

93. Fifth, on 3 October 2023, the financial year in which the APSC only had 6 employee devoting 75% of their time to FOI decision making (see page 4 of the APSC’s submissions), the APSC received an FOI request (https://archive.org/details/lex-637-aust...) for access to SEVERAL CLASSES of documents relating to the decision, to select a national registrar, that Kate McMullan characterised as one affected by a contravention of the Code of Conduct because the female candidate was “selected over a field of candidates all of whom did have this work-related quality” (https://archive.org/details/pid-2020-400..., page 13 of 14).

94. Melanie McIntyre, the APSC’s General Counsel, accessed the relevant record storage areas and, after conducting the relevant searches for the documents requested, issued an access refusal decision on 3 October 2023: https://archive.org/details/lex-637-aust...

95. Thus, in the 2023-2024 financial year (which was the year in which the APSC had 6 people who spent 75% or more of their time dealing with FOI requests), the APSC’s General Counsel, and the very officer who has spent almost a year advancing the claim that processing my FOI request for a seemingly innocuous role evaluation record, was able to identify, locate, examine and decide to refuse access to documents that were clearly of a more penetrating and sensitive nature than the document I requested access to.

96. Sixth, as noted in paragraph 57 of these submissions, the APSC’s officials have made access decisions in respect of documents relating to “sensitive” subject matter, “being recruitment processes and a public interest disclosure investigation”, which include documents published on the APSC’s FOI disclosure log, as well as documents published on Right to Know Australia.

97. Clearly, officials in the APSC have had no trouble locating documents pertaining to the Federal Courts recruitment processes and the public interest disclosure investigation conducted by Ms McMullan.

98. Clearly, officials in the APSC have had no trouble identifying documents pertaining to the Federal Courts recruitment processes and the public interest disclosure investigation conducted by Ms McMullan.

99. Clearly, officials in the APSC have had no trouble collating documents pertaining to the Federal Courts recruitment processes and the public interest disclosure investigation conducted by Ms McMullan.

100. Clearly, officials in the APSC have had no trouble examining documents pertaining to the Federal Courts recruitment processes and the public interest disclosure investigation conducted by Ms McMullan.

101. Clearly, officials in the APSC have had no trouble deciding whether to grant, or refuse, access to documents pertaining to the Federal Courts recruitment processes and the public interest disclosure investigation conducted by Ms McMullan.

102. Clearly, the APSC’s submission that undertaking a search for the role evaluation record for a single National Judicial Registrar & District Registrar role, which has been identified with particularity in my FOI request, is “too onerous” is, in the light of the APSC’s own documents and evidence, utterly unjustified.

103. The APSC’s officials have failed to have regard to the instructions set out in the FOI Guidelines about conducting sample searches (not that a single role evaluation document requires sampling – it’s a role evaluation record for a single role), contrary to section 93A of the FOI Act.

104. The APSC’s submissions about the “onerousness” of conducting searches for a role evaluation record for a single National Judicial Registrar & District Registrar role are, in the light of objective and public evidence, baseless and, to quote Justice Jagot, calculated “to defeat the objects of the FOI Act.”

Setting the record straight – suggestion that I have been uncooperative

105. On page 5 of the submissions, the APSC suggests that I have been uncooperative, stating that I “refused to revise the request in response to the consultation notice and, when the Commission sought to engage following notification of the IC review, the FOI applicant referred to their earlier responses confirming they disagreed that a practical refusal reason existed.”

106. Just because I have questioned the statements of Melanie McIntyre, that does not mean that I have been uncooperative. On the contrary, in all of my engagement with the APSC, I have provided cogent, well articulated reasons to support my views. That is evident from the public record of correspondence: https://www.righttoknow.org.au/request/r.... I have been cooperative.

107. On the other hand, the record shows that the APSC’s officials have been uncooperative. They have failed to engage with my criticisms and queries. By way of examples nobody in the APSC has engaged with my criticisms of Melanie McIntyre’s claim that:

a) the scope of my FOI request captured other FOI requests and documents created as part of processing them, even though my request was for access to a role evaluation record; or

b) a practical refusal reasons exists because I did not want the request to be transferred to another agency; or

c) the scope of my request, which is for a single role evaluation record, should be narrowed “by providing more specific information about exactly what documents [I] am interested in”: https://www.righttoknow.org.au/request/1....

108. It turns out that I was justified in my opinion that a practical refusal reason in respect of the role evaluation record did not exist. Melanie McIntyre didn’t even bother to conduct a search for the requested role evaluation record. Nevertheless, without any relevant evidence, Melanie McIntyre, the General Counsel of the APSC, stated that processing the request would take 78 hours and would both substantially and unreasonably divert the resources of the APSC from its other operations.

109. In fact, as I noted in paragraphs 54 – 60 of my submissions dated 23 August 2023 (https://www.righttoknow.org.au/request/r...), in addition to being simply uncooperative, Melanie McIntyre, the General Counsel of the APSC, took the opportunity to publicly advance denigrative statements and imputations about my character in the course of making submissions to the OAIC: https://www.righttoknow.org.au/request/1....

Setting the record straight – the public interest in the document requested

110. On page 6 of the submissions, in response to the OAIC’s query “whether there is a significant public interest in the documents requested”, the APSC has stated that the “Commission does not consider there to be a significant public interest in the documents requested.”

111. With respect, that is not reflected by the APSC’s own submissions, as well as public and objective evidence.

112. Though not addressing the timeframe, according to page 6 the APSC’s own submissions, “the Commission received 121 FOI requests (including internal reviews) for access to documents relating to recruitment processes in the Federal Court and a public interest disclosure investigation.” Clearly, there is popular interest in the issue.

113. Of course, popular interest does not necessarily translate into the documents requested being in the public interest.

114. That said, there is more than mere popular interest or curiosity in the matter. The recruitment processes in the Federal Court and the public interest disclosure investigation have been the subject of media commentary: see, for example, https://fedcourt.gov.au/__data/assets/pd... https://www.ag.gov.au/node/6506; https://www.afr.com/politics/federal/cor.... In fact, the recruitment processes in the Federal Court were subject to adverse commentary by two eminent jurists – the Hon Andrew Peter Greenwood, a former judge of the Federal Court of Australia (see https://fedcourt.gov.au/__data/assets/pd..., pages 7 – 8), and the Hon Anthony Whealy KC, a former judge of the NSW Court of Appeal (see https://www.ag.gov.au/node/6506).

115. Moreover, the recruitment processes and the public interest disclosure investigation have been the subject of sustained and ongoing enquiries by Senators, especially during Senate Estimates (see, for example, https://www.aph.gov.au/api/qon/downloade... https://www.aph.gov.au/api/qon/downloade... https://www.aph.gov.au/api/qon/downloade... https://www.aph.gov.au/api/qon/downloade... https://www.aph.gov.au/api/qon/downloade... https://www.aph.gov.au/api/qon/downloade... https://www.aph.gov.au/api/qon/downloade... https://www.aph.gov.au/api/qon/downloade... https://www.aph.gov.au/api/qon/downloade... https://archive.org/details/pid-2020-400...).

116. There is more than popular interest in the recruitment processes in the Federal Court and the public interest disclosure investigation conducted by Kate McMullan; the interest in the matter, especially on the part of the Senate, goes to the propriety of Kate McMullan’s investigations as well as a culture of cronyism in the Federal Court of Australia.

117. It is also public knowledge that a performance audit conducted by the Auditor-General in the 2023-2024 financial year found that the Australian Public Service Commission’s administration of its integrity functions was far from adequate – Auditor General Report No 43, 2023-2024 – Australian Public Service Commission’s administration of integrity functions: https://www.anao.gov.au/work/performance...).

118. The purpose of the Auditor-General’s audit was to determine (Audit report, pages 10 – 11):

a) whether the Australian Public Service Commission effectively promoted the APS Values and Code of Conduct; and

b) whether the Australian Public Service Commission effectively monitored and evaluated agencies’ implementation of the APS Values and Code of Conduct; and

c) whether the Australian Public Service Commission effectively contributed to the stewardship of the Australian Public Service.

119. The Auditor-General set out four broad conclusions on the issued audited.

120. First, the Auditor-General found that the Australian Public Service Commission was “partly effective in its administration of statutory functions relating to upholding high standards of integrity and ethical conduct in the APS during the audit review period (July 2022 to December 2023)” because “the APSC could not demonstrate or provide assurance on whether its activities relating to integrity functions were well directed or fully effective”: Audit Report, page 11, paragraph 17.

121. Second, the Auditor-General found that the “APSC was partly effective in promoting the APS Values and Code of Conduct and in providing advice and assistance to APS agencies on public service matters” because:

a) the “APSC did not have a strategy, linked to outcomes which can be measured, for promoting the APS Values and Code of Conduct”: Audit Report, page 11, paragraph 18; and

b) the APSC did not have a “forward engagement strategy” in respect of its management of integrity risks and issues: Audit Report, page 11, paragraph 18.

122. On the basis of those findings, the Auditor-General concluded that the “APSC had limited arrangements in place to provide assurance to the Commissioner and Parliament that it had effectively promoted the APS Values and Code of Conduct”: Audit Report, page 11, paragraph 18. The finding that the APSC has limited capacity to provide assurance to the Parliament that is effectively promoted the APS Values and the Code of Conduct is disturbing.

123. Third, the Auditor-General found that the “APSC did not have a sound basis for monitoring and evaluating the extent to which agencies incorporate and uphold the APS Values, or the adequacy of systems and procedures in agencies to ensure compliance with the Code of Conduct”: Audit Report, page 11, paragraph 19. Moreover, the Australian Public Service Commission had “no mechanism to provide assurance or insight to the Commissioner or the Parliament on agencies’ implementation of the APS Values and Code of Conduct”: Audit Report, page 11, paragraph 19.

124. Finally, the “APSC did not have a documented strategy or plan to support the Commissioner’s functions relating to stewardship”: Audit Report, page 11, paragraph 19.

125. Clearly, the APSC has fundamental problems when it comes to the administration of its integrity functions.

126. As I noted in paragraph 3 – 9 of these submissions, Kate McMullan, having been provided with evidence of the role evaluation / role review by the Federal Court during her investigation, made a material finding of fact that “a determination was made that NJR positions could be held at the SESB1 level in some registrars and at the Legal 2 level is other registrars …”

127. Since the Auditor-General found that:

a) the “APSC did not have a sound basis for monitoring and evaluating the extent to which agencies incorporate and uphold the APS Values, or the adequacy of systems and procedures in agencies to ensure compliance with the Code of Conduct”; and

b) the Australian Public Service Commission had “no mechanism to provide assurance or insight to the Commissioner or the Parliament on agencies’ implementation of the APS Values and Code of Conduct”,

the only mechanism available, to those outside the APSC, to help determine whether the APSC’s integrity investigations are being conducted according to law is the FOI Act.

128. Since:

a) so much of the propriety of Kate McMullan’s investigation turns on evidence of the role evaluation that I have requested; and

b) there has been learned criticism of the Federal Court’s recruitment practices in relation to its registrars, including from former superior court judges; and

c) there has been learned criticism and inquisition from Senators during Senate Estimates; and

d) the Australian Public Service Commission has “no mechanism to provide assurance or insight to the Commissioner or the Parliament on agencies’ implementation of the APS Values and Code of Conduct”; and

e) the APSC does “not have a sound basis for monitoring and evaluating the extent to which agencies incorporate and uphold the APS Values, or the adequacy of systems and procedures in agencies to ensure compliance with the Code of Conduct”,

there is, in fact, significant public interest in 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), being released under the FOI Act.

129. Thus, in the light of public and objective evidence, the APSC’s submission that the “Commission does not consider there to be a significant public interest in the documents requested” is, without controverting evidence on the part of the APSC, without justification or support.

I feel like I have been discriminated against by the APSC’s officials during this process

130. It is clear to me that the APSC has received FOI requests in respect of the Federal Court’s recruitment of registrars, and Kate McMullan’s handling of the investigation into that recruitment process. By way of example, I have, in paragraphs 81 – 95 of these submissions, already adverted to several records of decision issued under the FOI Act by officials in the APSC in respect of those applications. Moreover, I have, in paragraph 57 of these submissions, adverted to documents released under the FOI Act by officials in the APSC in respect of the Federal Court’s recruitment of registrars, and Kate McMullan’s handling of the investigation into that recruitment process.

131. Clearly, officials in the APSC have taken the time to process FOI requests in respect of the Federal Court’s recruitment of registrars, and Kate McMullan’s handling of the investigation into that recruitment process. As noted in paragraphs 81 – 95 of these submissions, many of those requests have dealt with far more sensitive issues than my request, which is a request for a humble role evaluation record, that contains no personal information and would ordinarily be made available to anybody who requested it.

132. On page four of their submission, the APSC has noted that in the 2022-2023 financial year, they only had one person who spent more than 75% of their time processing FOI requests. There were 11 who spent less than 75% of their time processing FOI requests in the 2022-2023 financial year.

133. As noted in paragraphs 81 – 89 of these submissions, decision makers in the APSC, including SES officials such as Kylie Barber, made decisions in respect of quite sensitive and broad FOI requests, even though:

a) there was just one person who spent more than 75% of their time processing FOI requests; and

b) just 11 people who spent less than 75% of their time processing FOI requests.

134. I made my request on 16 October 2023 (i.e. in the 2023-2024 financial year): https://www.righttoknow.org.au/request/r....

135. As I have repeatedly pointed out, my request was 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). In other words, my request was for a single role in the Federal Court of Australia.

136. As I have repeatedly pointed out, a decision maker in the Federal Court of Australia has stated that the record does not exist: https://www.righttoknow.org.au/request/r.... This is despite the fact that Kate McMullan of the Australian Public Service Commission stated, in her investigation report (https://archive.org/details/pid-2020-400... – see page 2 of 14):

“Relevant Evidence

The material provided by FCA does indicate that [QLD District Registrar] and [WA District Registrar] applied for SESB1 positions and were ultimately placed into Legal 2 positions. However, material provided by FCA also indicates that, following advertisement of these positions and the finalisation of the recruitment process, a role review was undertaken by FCA. The evidence provided indicates that as a result of a role review, a determination was made that NJR positions could be held at the SESB1 level in some registrars and at the Legal 2 level is other registrars …”

137. On page four of their submission, the APSC has noted that in the 2023-2024 financial year, they had six people who spent more than 75% of their time processing FOI requests (i.e. 500% more resources devoted to processing FOI requests than in the 2022-2023 financial year). Moreover, there were 90 who spent less than 75% of their time processing FOI requests in the 2023-2024 financial year (i.e. 79 more people devoted to processing FOI requests than in the 2022-2023 financial year).

138. In a year in which the APSC had such a steep increase in its resourcing and capacity to process FOI requests, Melanie McIntyre, the General Counsel of the APSC, has advanced the claim, without any objective evidence in support of the claim, that it will take 78 hours to process an FOI request for a role evaluation record for a single role.

139. When I took issue with her claim that it would take 78 hours to process my request, including the flaws in her reasoning (see, for example, https://www.righttoknow.org.au/request/r...), she refused to engage with the cogent and well articulated criticisms, and doubled down on those reasons (https://www.righttoknow.org.au/request/1...). The flaws in her reasoning we so obvious that it did not take much to draw them to the attention of Mr Heath Baker, the Director of the FOI Branch in the OAIC: https://www.righttoknow.org.au/request/r....

140. As I noted in paragraphs 54 – 60 of my submissions dated 23 August 2024, rather than engage with the reasons that I have provided, Melanie McIntyre used the opportunity to provide submissions to the OAIC to personally belittle me by advancing denigratory statements and imputations about my character: https://www.righttoknow.org.au/request/1....

141. Specifically, Melanie McIntyre claimed that 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.

142. These ad hominem attacks are of no relevance to the actual issue under review – Gordon de Brouwer’s deemed refusal decision. Nor were these ad hominem attacks of any 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 being actually the case.

143. In a year in which the APSC had such a steep increase in its resourcing and capacity to process FOI requests:

a) Melanie McIntyre, the General Counsel of the APSC, has advanced the claim, without any objective evidence in support of the claim, that it will take 78 hours to process an FOI request for a role evaluation record for a single role; and

b) Melanie McIntyre, the General Counsel of the APSC, has, in formal submissions to the OAIC, advanced denigratory statements and imputations about my character,

even though, in the 2022-2023 financial year, her colleagues processed, with substantially fewer resources, FOI requests that were clearly more broad in scope and dealt with more sensitive documents than my FOI request.

144. Indeed, as noted in paragraphs 92 – 95 of these submissions, in the 2023-2024 financial year, Melanie McIntyre was perfectly content to process the FOI request of another applicant, which was clearly more broad in scope and dealt with more sensitive documents than my FOI request.

145. While I do not know what her motivations are, in the light of public and relevant evidence, including evidence about the significantly increased resources available to the APSC in the 2023 -2024 financial year for processing FOI requests as well as evidence of Melanie McIntyre processing the FOI requests of other applicants, in the 2023-2024 financial year, in respect of subject matter relating to the Kate McMullan’s investigation, I can’t help but feel that Melanie McIntyre has discriminated against me for making an FOI request that has, it would appear, touched a nerve.

Further evidence published on 2 October 2024

146. Under the FOI Act, an official in the Office of the Commonwealth Ombudsman released part of the APSC’s submissions in response to the Commonwealth Ombudsman’s investigation into Kate McMullan’s handling of her PID investigation into the recruitment of registrars in the Federal Court.

147. Those submissions were published online on 2 October 2024, almost a year after I submitted my FOI request on 16 October 2023: https://archive.org/details/pid-2020-400....

148. In the APSC’s submissions to the Commonwealth Ombudsman, which relate to the role review of an SES level registrar role, an official submitted the following on pages 8 – 9:

“In the absence of documentary evidence [of the role review] an assessment of efficacy or not cannot be determined. A lack of documentation would suggest an administrative failure.”

149. In light of:

a) the fact that an FOI decision maker in the Federal Court of Australia has stated that no 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) exists: https://www.righttoknow.org.au/request/r... and

b) the APSC’s submissions to the Office of the Commonwealth Ombudsman in response to the Ombudsman’s investigation into Kate McMullan’s handling of her PID investigation tends to indicate that there is an “absence of documentary evidence” of 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): https://archive.org/details/pid-2020-400... and

c) the fact that Melanie McIntyre appears to accept, in her own submissions, that “the Agency most likely to hold the documents sought by the Applicant, the Federal Court, has already undertaken extensive searches for documents and has been unable to locate the documents sought”, which implies she accepts that the APSC does not have 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),

it is unacceptable for the APSC to continue to draw this FOI process out any longer without justification.

150. In the light of the evidence, it would appear that the APSC’s submissions are an abuse of process. In the light of the evidence, it would appear that Melanie McIntyre’s claim that it will take 78 hours to process my FOI request is an abuse of process. In the light of the evidence, it would appear that the APSC’s officials are wasting the resources of the Commonwealth.

Conclusion

151. In paragraphs 3 – 9 of these submissions, I have set out my rationale for making my FOI request of 16 October 2023.

152. In paragraphs 10 – 12 of these submissions, I again draw to the attention of the OAIC that the IC reviewable decision is Dr Gordon de Brouwer’s deemed refusal decision. The decision under review is not a practical refusal reasons decision.

153. In paragraphs 13 – 31 of these submissions, I identify the law in respect of claiming whether a practical refusal reason exists. I also note:

a) in paragraph 27, that it is not open to the APSC to make submissions in support of claiming a practical refusal exists under s 24 of the FOI Act with respect to the IC reviewable decision because the IC reviewable decision is not a practical refusal decision; and

b) in paragraph 29, that I have charitably construed the so called “further submissions in support of claiming a practical refusal exists under s 24 of the FOI Act” as an application for an extension of time under section 15AC of the FOI Act.

154. In paragraphs 32 – 42 of these submissions, I provide, in the light of the law, my submissions on why it would not be open to the Information Commissioner or her delegate to remit the request back to the APSC for a substantive decision if the Commissioner or her delegate find that a practical refusal reason never existed. I also note that any substantive substitute decision must be made by the Information Commissioner or her delegate.

155. In paragraphs 43 – 46 of these submissions, I note how the claim that more specific information is needed to determine what documents I have sought under my FOI request is nonsense, and why those nonsensical claims do not give rise to a practical refusal reason.

156. In paragraphs 47 – 51 of these submissions, I note why the APSC’s claims about transferring the request to the Federal Court are nonsensical, and why those nonsensical claims do not give rise to a practical refusal reason.

157. In paragraphs 52 – 60 of these submissions, I dispel the APSC’s claims about the sensitivity of the subject matter of my FOI request, which is a request for a role evaluation record in relation to a single role in the Federal Court of Australia, and how that supposed sensitivity gives rise to a practical refusal reason.

158. In paragraphs 61 – 64 of these submissions, I draw attention to the false claim made by the APSC that the APSC is a small agency.

159. In paragraphs 65 – 67 of these submissions, I address the APSC’s claims about its work program, and dispel how those claims give rise to a practical refusal reason.

160. In paragraphs 68 – 71 of these submissions, I address the nonsensical claims advanced that the scope of my FOI request captured other FOI requests, and documents created as part of processing those FOI request, and dispel how those clearly nonsensical claims give rise to a practical refusal reason.

161. In paragraphs 72 – 104 of these submissions, I address the APSC’s failures to undertake searches to justify the estimated processing times advanced. I provide cogent reasons as to why there is no evidence to suggest that a practical refusal reason exists, and that the claim that it will take 78 hours to process my request is just capricious.

162. In paragraphs 105 – 109 of these submissions, I dispel the APSC’s suggestion that I have been uncooperative, and demonstrate that the APSC’s staff members have actually been uncooperative.

163. In paragraphs 110 – 129 of these submissions, I explain why, contrary to the APSC’s claims, there is a significant public interest in granting access to the role evaluation record I requested under the FOI Act.

164. In paragraphs 130 – 145 of these submissions, I explain, in the light of publicly available evidence, why I believe I have been discriminated against by officials in the APSC when it has come to processing my FOI request.

165. In paragraph 146 – 150 of these submissions, I draw attention to submissions made by the APSC to the Commonwealth Ombudsman and how those submissions tend to show, along with an FOI decision made by an authorised officer in the Federal Court and Melanie McIntyre’s own submissions to the OAIC, that the APSC’s approach to my FOI request and the subsequent IC review has been an abuse of process.

166. In the light of the evidence, the APSC’s submissions and my submissions, the APSC has:

a) failed to persuade me that an extension of time should be granted to the APSC to, first, formally claim that a practical refusal reason exists in respect of the document I have requested and, then, to advance such submission to the OAIC; and

b) failed to persuade me that a practical refusal reason exists in respect of the document I requested access to under the FOI Act.

167. I can’t imagine that anybody in the OAIC will form the view that APSC has discharged the onus of justifying Dr Gordon de Brouwer’s deemed refusal decision on the basis of submissions that I have taken to be an application for an extension of time under section 15AC of the FOI Act to, if granted, advance practical refusal reasons.

Yours sincerely,

Marius

OAIC Reference: MR23/01386

Dear Australian Public Service Commission,

I draw your attention to my response to the APSC's further submission: https://www.righttoknow.org.au/request/r...

Yours sincerely,

Marius

OAIC Reference: MR23/01386

Dear Ms O’Kearney,

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

Yours sincerely,

Marius