s 54W decline review recommendation letters
Verity Pane made this Freedom of Information request to Office of the Australian Information Commissioner
This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.
Attn Office of the Australian Information Commissioner,
I want copy of every letter the OAIC sent in FY2021/22 that states "The purpose of this letter is to advise you of my intention to recommend the delegate of the Information Commissioner exercises the discretion to decide not to continue to undertake a review of your IC review application".
Personal information of any person to be redacted under s 22, as well as the FOI and IC review references numbers.
Transparency of reasoning as to why ic reviews are not recommended by OAIC staff is important in showing what confidence can be had in the Office's primary statutory functions.
Verity Pane
Our reference: FOIREQ22/00181
Dear Verity Pane
Freedom of Information request
I refer to your request for access to documents made under the Freedom of
Information Act 1982 (Cth) (the FOI Act) and received by the Office of the
Australian Information Commissioner (OAIC) on 13 July 2022.
Scope of your request
In your email you seek access to the following:
I want copy of every letter the OAIC sent in FY2021/22 that states "The
purpose of this letter is to advise you of my intention to recommend the
delegate of the Information Commissioner exercises the discretion to
decide not to continue to undertake a review of your IC review
application".
In order to process your request as efficiently as possible, I will
exclude duplicates and early parts of email streams that are captured in
later email streams from the scope of this request, unless you advise me
otherwise.
We will not identify you as the FOI applicant during and consultation
process. However, documents that are within the scope of your request that
we may need to consult third parties about may contain your personal
information.
Timeframes for dealing with your request
Section 15 of the FOI Act requires this office to process your request no
later than 30 days after the day we receive it. However, section 15(6) of
the FOI Act allows us a further 30 days in situations where we need to
consult with third parties about certain information, such as business
documents or documents affecting their personal privacy.
As we received your request on 13 July 2022, we must process your request
by 12 August 2022.
Disclosure Log
Documents released under the FOI Act may be published online on our
disclosure log, unless they contain personal or business information that
would be unreasonable to publish.
If you would like to discuss this matter please contact me on my contact
details set out below.
Regards
[1][IMG] Matilda Grimm | Paralegal
Legal Services
Office of the Australian
Information Commissioner
GPO Box 5218 Sydney NSW 2001 |
[2]oaic.gov.au
1300 363 992
| [3][email address]
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OAIC ref: FOIREQ22/00181
Dear Ms Pane
I refer to your freedom of information request received by the OAIC on 13
July 2022.
Please find attached s 24AB notice.
We would be grateful for your response by Monday 22 August 2022.
Please feel free to contact me if you would like to discuss.
Kind regards
Margaret
[1]O A I C logo Margaret Sui | Senior Lawyer
Legal Services
Office of the Australian
Information Commissioner
GPO Box 5218 Sydney NSW 2001 |
[2]oaic.gov.au
+61 2 9942 4145 |
[3][email address]
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Attn OAIC - Legal,
Your practical refusal consultation claims "I conservatively estimate that it will take the FOI decision maker 5 hours to prepare a schedule of documents within scope of your FOI request, and another 2 hours to draft the FOI decision and reasons for decision."
The highly inflated 5 hours claimed to prepare a schedule of documents (which is no more than a list of documents in scope) highlights the levels of exaggeration to be found throughout this practical refusal consultation, especially since the Freedom of Information Act does not require a documents schedule to be produced, and no documents schedule was asked for in the foi.
You also claim you will need 13.5 hrs to search for these documents despite already having a spreadsheet in your possession listing the Resolve reference numbers (they all begin with the coding MR) for "all IC review matters where an ITD was issued" for the timeframe in scope, and despite that all such letters are clearly listed in the attached documents section of each of those Resolve listings with a fixed naming template used by the OAIC "MRYY/XXXXX Intention to undertake / not undertake IC review" where YY is the year and XXXXX is the sequence number for that year.
This indicates that contrary to the Office of the Australian Information Commissioner's claims that it has poor record keeping of such ITD letters, which the OAIC shouldn't be penalising FOIers for even if that false claim was true, such letters can be accessed efficiently by the OAIC and can even be retrieved without individual manual intervention.
As it was agreed that all personal information and Resolve reference numbers was to be redacted as irrelevant under s 22, those parts of these letters require none of the consideration of redactions that you have claimed 40 hours for. With that s 22 carve-out, little consideration of the remainder of these letters is required as other available exemptions largely have relevance only to those irrelevant parts.
The only real work involved is in applying the s 22 irrelevant redactions to these documents. Conservatively this would take no more than 30 seconds per page to do. Your calculations are clearly inflated to act as a barrier to access as a result.
But given you have claimed that the spreadsheet has identified 422 intention to dismiss IC Review letters were issued in FY2021-22 by the OAIC, a very large number highlighting the frequency of such disposals by the OAIC, I agree to vary my scope to the first 100 ITD ICR letters that were issued in FY2021-22.
There is a genuine public interest, given the OAIC is a regulator, that the OAIC is issuing ITD letters fairly and on consistent principles so release of these documents would serve to create confidence that the OAIC is transparent, accountable and consistent with its ITD intentions (that is if the OAIC is giving more than lip service to its regulatory duties, not just issuing ITDs to reduce its backlog of open ICRs).
As I have agreed to vary the scope, the request consultation period has concluded and the processing period has recommenced as of today.
Verity Pane
Dear Verity Pane,
Thank you for your email, and for revising the scope of your request.
Unfortunately, due to limitations with the OAIC’s Resolve filing system,
we are unable to organise matters by the date that an ITD letter was sent.
The OAIC does not record the date upon which ITD letters are sent in
Resolve. The relevant line area has advised that, in order to fulfil your
request, a staff member would have to:
1. open up all 422 matters
2. record the date the ITD letter was sent in each of the 422 matters,
and
3. cross reference all of these matters in order to determine which were
the first 100 ITD letters sent in the 2022 financial year.
Accordingly, in order to continue processing the request, we have
interpreted the revised scope to seek “ITD letters from the first 100 IC
Review matters received by the OAIC in the 2022 Financial Year”.
Noting the short timeframe we have to process your request, it would be
much appreciated if you could confirm your agreement with this revised
scope by 10am 16 August 2022.
If we do not hear from you by this time, we shall continue to process your
FOI request based on our interpretation of the FOI request. We consider
that our interpretation should be able to be processed and that, on this
basis, a practical refusal reason no longer exists.
Kind regards,
Llewellyn
[1]O A I C logo Llewellyn Horgan | Graduate
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | oaic.gov.au
+61 2 9942 4234 | [2][email address]
Notice:
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be confidential information, and may also be the subject of legal
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email in error, please notify the sender by contacting the department's
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References
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OAIC ref: FOIREQ22/00181
Dear Verity Pane
I refer to your request for access to documents made under the Freedom of
Information Act 1982 (Cth) (the FOI Act) and received by the Office of the
Australian Information Commissioner (OAIC) on 13 July 2022.
Please find attached our decision in the above matter of today’s date.
Kind regards
Margaret
[1]O A I C logo Margaret Sui | Senior Lawyer
Legal Services
Office of the Australian
Information Commissioner
GPO Box 5218 Sydney NSW 2001 |
[2]oaic.gov.au
+61 2 9942 4145 |
[3][email address]
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FOIREQ22/00181
Dear Verity Pane,
Please find attached the first tranche of documents and schedule released
to you as part of your Freedom of Information request FOIREQ22/00181.
Kind regards,
Llewellyn
[1]O A I C logo Llewellyn Horgan | Graduate
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | oaic.gov.au
+61 2 9942 4234 | [2][email address]
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
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Attn Office of the Australian Information Commissioner,
Pass this on to the person who conducts Freedom of Information reviews.
I write for an internal review of Office of the Australian Information Commissioner's handling of my FOI FOIREQ22/00181 's 54W decline review recommendation letters'.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/s...
This improper decision proclaims it is exercising two powers beyond the scope of the FOI Act - deferring access (which outside of s 21, which was not invoked, the OAIC has no power to do) and substituting a clear and unambiguous scope without consent (s 15(2)(b) does not allow for an foi agency to substitute its preferred scope for an applicant's scope) - that is improper, unethical and ultra vires.
The claim that the OAIC is also keeps no reasonable records as would be expected of an adequate record keeping system for Commonwealth records of the dates it issues correspondence to third parties is one that flies in the face of the Commissioner's guidelines that:
"it is implicit in the objectives [of the FOI Act] that there is a requirement for sound record keeping so that an agency’s documents can be readily identified and found when an FOI request is received... In summary, applicants cannot be disadvantaged by poor or inefficient record keeping by agencies or ministers... Poor record keeping or an inefficient filing system would not of themselves provide grounds for a claim that identifying or locating documents would be a substantial and unreasonable diversion of resources. See ‘AP’ and Department of Human Services [2013] AICmr 78 [38]."
as the Guidelines explain:
Given the objectives in the FOI Act that information held by government is a national resource and that public access to information should be facilitated, agencies must ensure that appropriate resources are allocated to dealing with FOI matters. This may include assigning additional temporary resources to handle a peak in the number or complexity of requests or to overcome inadequate administrative procedures. Poor record keeping or an inefficient filing system would not of themselves provide grounds for a claim that identifying or locating documents would be a substantial and unreasonable diversion of resources.
As the Information Commissioner stated: "I think that poor record keeping or an inefficient filing system can also not in themselves provide grounds for a claim that the preparation of documents (for decision and editing) would be a substantial and unreasonable diversion of an agency’s resources."
In this case, the fact that the OAIC claims its databases/registries cannot extract its outgoing correspondence in date order and by type amounts to an inadequate administrative procedure. As the Guidelines explain, an foi agency cannot rely on the inadequacy of its systems to act as a barrier to access.
The exemption claims, especially the "certain operations of agencies" claim on the dates of such correspondence, is wholly untenable as these claims rely on generic and broad template text claims that amount to a class specific claim, and not one based on the material redacted or any reasonable evidence of a substantial adverse effect if release occurred. They are blanket claims.
Verity Pane
FOIREQ22/00181
Dear Verity Pane,
Please be advised that the second and final tranche of documents in the
above matter will now be provided to you tomorrow Thursday 1 September
2022.
Apologies for this delay.
Kind regards,
Llewellyn
[1]O A I C logo Llewellyn Horgan | Graduate
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | oaic.gov.au
+61 2 9942 4234 | [2][email address]
From: HORGAN,Llewellyn
Sent: Wednesday, 24 August 2022 7:03 PM
To: Verity Pane <[FOI #9124 email]>
Cc: OAIC - Legal <[email address]>
Subject: FOIREQ22/00181 - first tranche of documents
FOIREQ22/00181
Dear Verity Pane,
Please find attached the first tranche of documents and schedule released
to you as part of your Freedom of Information request FOIREQ22/00181.
Kind regards,
Llewellyn
[3]O A I C logo Llewellyn Horgan | Graduate
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | oaic.gov.au
+61 2 9942 4234 | [4][email address]
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. https://www.oaic.gov.au/
2. mailto:[email address]
3. https://www.oaic.gov.au/
4. mailto:[email address]
FOIREQ22/00181
Dear Verity Pane,
Please find attached the second and final tranche of documents and
schedule released to you as part of your Freedom of Information request
FOIREQ22/00181.
Kind regards,
Llewellyn
[1]O A I C logo Llewellyn Horgan | Graduate
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | oaic.gov.au
+61 2 9942 4234 | [2][email address]
From: HORGAN,Llewellyn
Sent: Wednesday, 31 August 2022 6:04 PM
To: Verity Pane <[FOI #9124 email]>
Cc: OAIC - Legal <[email address]>
Subject: RE: FOIREQ22/00181 - first tranche of documents
FOIREQ22/00181
Dear Verity Pane,
Please be advised that the second and final tranche of documents in the
above matter will now be provided to you tomorrow Thursday 1 September
2022.
Apologies for this delay.
Kind regards,
Llewellyn
[3]O A I C logo Llewellyn Horgan | Graduate
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | oaic.gov.au
+61 2 9942 4234 | [4][email address]
From: HORGAN,Llewellyn
Sent: Wednesday, 24 August 2022 7:03 PM
To: Verity Pane <[5][FOI #9124 email]>
Cc: OAIC - Legal <[6][email address]>
Subject: FOIREQ22/00181 - first tranche of documents
FOIREQ22/00181
Dear Verity Pane,
Please find attached the first tranche of documents and schedule released
to you as part of your Freedom of Information request FOIREQ22/00181.
Kind regards,
Llewellyn
[7]O A I C logo Llewellyn Horgan | Graduate
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | oaic.gov.au
+61 2 9942 4234 | [8][email address]
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. https://www.oaic.gov.au/
2. mailto:[email address]
3. https://www.oaic.gov.au/
4. mailto:[email address]
5. mailto:[FOI #9124 email]
6. mailto:[email address]
7. https://www.oaic.gov.au/
8. mailto:[email address]
FOIREQ22/00254
Dear Verity Pane,
I refer to your email of 27 August 2022.
We acknowledge receipt of your application for internal review of the
OAIC’s FOI decision FOIREQ22/00181 dated 17 August 2022.
Section 54C of the Freedom of Information Act 1982 (Cth) requires this
office to make a fresh decision within 30 days after the day we received
your application.
Because we received your application on 27 August 2022, we must make a
fresh decision by 26 September 2022. Your application will be allocated to
a
review officer with no previous involvement with the earlier decision.
If you have any questions, please contact me at the details provided
below.
Kind regards,
[1]O A I C logo Llewellyn Horgan | Graduate
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | oaic.gov.au
+61 2 9942 4234 | [2][email address]
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
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References
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Verity Pane,
Please find attached decision in relation to your request for internal review of FOIREQ22/00181.
Regards,
Emily
Emily Elliott | Senior Lawyer
Legal Services
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | oaic.gov.au
+61 2 9284 9852| [email address]
|
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-----Original Message-----
From: Verity Pane <[FOI #9124 email]>
Sent: Saturday, 27 August 2022 11:07 PM
To: HORGAN,Llewellyn <[email address]>
Subject: Re: FOIREQ22/00181 - first tranche of documents [SEC=OFFICIAL]
**************************************************************************
CAUTION: This email originated from outside of the organisation. Do not click links or open attachments unless you recognise the sender and know the content is safe.
**************************************************************************
Attn Office of the Australian Information Commissioner,
Pass this on to the person who conducts Freedom of Information reviews.
I write for an internal review of Office of the Australian Information Commissioner's handling of my FOI FOIREQ22/00181 's 54W decline review recommendation letters'.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/s...
This improper decision proclaims it is exercising two powers beyond the scope of the FOI Act - deferring access (which outside of s 21, which was not invoked, the OAIC has no power to do) and substituting a clear and unambiguous scope without consent (s 15(2)(b) does not allow for an foi agency to substitute its preferred scope for an applicant's scope) - that is improper, unethical and ultra vires.
The claim that the OAIC is also keeps no reasonable records as would be expected of an adequate record keeping system for Commonwealth records of the dates it issues correspondence to third parties is one that flies in the face of the Commissioner's guidelines that:
"it is implicit in the objectives [of the FOI Act] that there is a requirement for sound record keeping so that an agency’s documents can be readily identified and found when an FOI request is received... In summary, applicants cannot be disadvantaged by poor or inefficient record keeping by agencies or ministers... Poor record keeping or an inefficient filing system would not of themselves provide grounds for a claim that identifying or locating documents would be a substantial and unreasonable diversion of resources. See ‘AP’ and Department of Human Services [2013] AICmr 78 [38]."
as the Guidelines explain:
Given the objectives in the FOI Act that information held by government is a national resource and that public access to information should be facilitated, agencies must ensure that appropriate resources are allocated to dealing with FOI matters. This may include assigning additional temporary resources to handle a peak in the number or complexity of requests or to overcome inadequate administrative procedures. Poor record keeping or an inefficient filing system would not of themselves provide grounds for a claim that identifying or locating documents would be a substantial and unreasonable diversion of resources.
As the Information Commissioner stated: "I think that poor record keeping or an inefficient filing system can also not in themselves provide grounds for a claim that the preparation of documents (for decision and editing) would be a substantial and unreasonable diversion of an agency’s resources."
In this case, the fact that the OAIC claims its databases/registries cannot extract its outgoing correspondence in date order and by type amounts to an inadequate administrative procedure. As the Guidelines explain, an foi agency cannot rely on the inadequacy of its systems to act as a barrier to access.
The exemption claims, especially the "certain operations of agencies" claim on the dates of such correspondence, is wholly untenable as these claims rely on generic and broad template text claims that amount to a class specific claim, and not one based on the material redacted or any reasonable evidence of a substantial adverse effect if release occurred. They are blanket claims.
Verity Pane
-----Original Message-----
FOIREQ22/00181
Dear Verity Pane,
Please find attached the first tranche of documents and schedule released to you as part of your Freedom of Information request FOIREQ22/00181.
Kind regards,
Llewellyn
[1]O A I C logo Llewellyn Horgan | Graduate
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | oaic.gov.au
+61 2 9942 4234 | [2][email address]
Notice:
The information contained in this email message and any attached files may be confidential information, and may also be the subject of legal professional privilege. If you are not the intended recipient any use, disclosure or copying of this email is unauthorised. If you received this email in error, please notify the sender by contacting the department's switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any attachments.
References
Visible links
1. https://www.oaic.gov.au/
2. mailto:[email address]
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Notice:
The information contained in this email message and any attached files may be confidential information, and may also be the subject of legal professional privilege. If you are not the intended recipient any use, disclosure or copying of this email is unauthorised. If you received this email in error, please notify the sender by contacting the department's switchboard on 1300 488 064 during business hours (8:30am - 5pm Local time) and delete all copies of this transmission together with any attachments.
Dear Verity Pane,
Please find attached documents and schedule released to you in response to
your internal review request FOIREQ22/00254.
Kind regards,
Llewellyn
[1]O A I C logo Llewellyn Horgan | Graduate
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | oaic.gov.au
+61 2 9942 4234 | [2][email address]
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
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2. mailto:[email address]
Verity Pane left an annotation ()
Ic review