Dear Department of Defence,

I request under FOI the supporting documentation for the following CMS Transaction Reports given in https://www.righttoknow.org.au/request/t... (Reference by the FOI Document Serial Number used on the CMS Transaction Report):
* Serial 35 - Courgette Restaurant $938 Official Hospitiality
* Serial 41 - O/S Car Hire Hertz $3,816.23
* Serial 51 - Taxi $470.86
* Serial 52 - Taxi $418.01
* Serial 54 - Taxi $344.50
* Serial 55 - Limousine $300
* Serial 70 - Meals $377.85
* Reimbursement Serial 2 -$1,000
* Reimbursement Serial 5 -$769.80

Credit card numbers, passport numbers, phone numbers, and the names of any non-SES(E) staff can be redacted with consent. If private addresses are part of the documentation, all address details bar the suburb may be redacted with consent.

Due to the work previously carried out, these supporting documents are identified already, and due to the small number, should be easy enough to decide on, within the thirty day statutory period, and are official Commonwealth financial records (not private records).

Thank you for your assistance in advance. Given the transaction information already is published, but without the supporting documentation may cause concern or result in misinterpretion, there is a public interest in providing sufficient information to confirm that Defence is managing limited taxpayer funds adequately.

Yours faithfully,

Verity Pane

Dear Melissa,

It’s very disappointing Defence took the vast majority of the statutory deadline period to decide it wanted to consult third parties, when this FOI was forecast almost 60 days ago, and it relates to only 9 documents of only a few pages.

As you should be aware third party consultation (which does not include public servants of the agency, as they are not third parties) only can apply where documents subject to a request affect Commonwealth-State relations (s 26A) or Norfolk Island intergovernmental relations (s 26AA), are business documents (s 27) or are documents affecting another person’s privacy (s 27A).

As acknowledged by you previously this FOI does not fall within s 27A as consent has been given to redact a large number of identifying details (basically it’s just the name of SES(E) officers in the course of their duties, pick up and drop off suburbs, and publicly available corporate info and agency information that is within scope). While some details may remain that may relate to an individual, given the level of redaction what remains will be insufficient to qualify as personal information as the Privacy Act defines it (which requires the information to be about an individual, not just relate to them). Para 3 of your response today appears to suggest you are claiming s 27 applies, but does not say so explicitly.

You have not given reasons why you consider s 27 (or any other section) applies, you just claim third party consultation is required, while also not outlining whether it is all documents, some documents, or any of the parties that would need to be consulted.

This level of opaque claim is contrary to the obligations under the Act and appears to be little more than a sham to delay. I ask you to outline which documents, if any, require third party consultation, the basis of the third party consultation claim by document, and what third parties are to be consulted by document.

You should acknowledge and consider that s 27 has certain thresholds required to be met, as espoused in Re Mitsubishi Motors Australia Ltd and Secretary To the Department of Transport [1986] AATA 34 (10 February 1986):
“In keeping with those comments, s.27 of the Act provides a mandatory process of consultation by a government agency or Minister before a decision is made on the release of a document which contains information concerning business etc. affairs of an organisation, if it appears that an organisation might reasonably wish to contend that the document is exempt under s.43 [now s 47] of the Act. This mandatory consultative procedure is limited only to business, professional, commercial or financial affairs of persons or organisations and the exemption of documents pursuant to s.43 [now s 47]; it is not a procedure which is statutorily available in relation to any other exemption sections of the Act. Not only is the mandatory consultative procedure statutorily required, but further, notice in writing must be given pursuant to s.27(2) of the Act to the person or organisation if the Minister or government agency subsequently decides that the document is not exempt pursuant to s.43 [now s 47]. Further, access to the document shall not be given unless the time has expired for a person or organisation to make an application for review pursuant to s.59”

Given the nature of the documents in question, which are transactional in nature (being receipts and invoices), an argument that possible exemptions under s 47 may exist, that the documents may contain trade secrets or commercial sensitive information, is untenable.

It would seem untenable to claim all documents within scope require third party consultation, and in that case, Defence should provide staged release rather than delay improperly access to all documents.

Consistent with APP 3 an agency should seek to disclose the minimum amount of personal information of an FOI applicant when required. I am not persuaded there exists a valid business reason for any disclosure, based on the almost non-existent reasons for third party consultation, therefore no minimum amount of personal information applies, and no consent is given.

Yours sincerely,

Verity Pane

Dear Melissa,

Despite the issues raised more than a week ago with what appears to be nothing more than a fraudulent stalling tactic by Defence in this FOI, Defence has refused to give any justification or information in support of it’s claims and has instead ignored the issues raised.

Given the extent of unethical and unlawful delaying tactics and opaque behaviour by Defence, as recently highlighted by Four Corners with respect to Defence’s contamination of private land surrounding Defence sites and injury caused to the health of people residing there http://www.abc.net.au/4corners/contamina... I guess we shouldn’t be surprised that the Defence FOI area behaves the way it does, without any ethics to speak of.

If Defence continues to persist with such unethical behaviour, I may be forced to make a s 70 complaint since these issues seem systemic to Defence’s FOI area.

Yours sincerely,

Verity Pane

Dear Melissa,

Yet again Melissa, your response ignores the issues raised, and fails to given anything more than an opaque and deficient response.

Your refusal to outline the basis of how confidential business information as required for s 27 to apply, is contained in receipts and invoices for routine travel information (and you yourself declared s 27A did not apply), highlights the fraudulent use of s 27A to unlawfully delay access.

In short, this is appalling unethical behaviour by Defence, which only suggests Defence is attempting to cover something up here, contained in those documents (likely the fraudulent use of Commonwealth funds by one particular SES officer).

Yours sincerely,

Verity Pane

Dear Melissa,

Further on your untenable consultation claim, I would draw your attention to the Commissioner’s (Pilgrim’s) ruling in ‘FX’ and Department of Prime Minister and Cabinet [2015] AICmr 39 (5 June 2015) [at 33]:

PM&C contends that there is nothing in the FOI Act that expressly limits the type or extent of the consultation it chooses to undertake. However, it is implicit in the objectives of the FOI Act (s 3(4)) that an agency will process a request efficiently. Section 3(4) expressly provides that Parliament intends that the functions and powers given by the FOI Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information promptly and at the lowest reasonable cost. Where an agency extends consultation beyond that required by the FOI Act, it increases the processing cost and time.

The seems, of late. to be a substantive abuse of consulting EOTs, far beyond that provided for by the Act, across certain agencies at the moment. It is rather appalling.

This consultation claim, on what are invoices and receipts for car hire, taxi fares and other routine travel expenditure, is well below the threshold required for s 27, that being confidential business documents of commercial entities, and is a clear abuse of process by Defence. s 27 was intended to cover high level commercial in confidence material (such as sensitive IP, certain contracts, etc) the disclosure of which would adversely prejudice the commercial entity in question, and is not meant for trivial or inconsequential routine documentation, to which no contractual confidentiality obligation applies.

It is, in a word, a sham use of s 27, to cause unlawful delay.

Yours sincerely,

Verity Pane

Dear Melissa,

Again there is no material sufficient in the documents sought that would give reasonable basis to believe “trade secrets” or other material sufficient to of substantive detriment to a commercial entity if disclosed. The documents in question are receipts and invoices which the Department itself has applied no “commercial-in-confidence” document classifications to (only now is it being suggested, as a sham to delay release, as a form of harassment to me personally).

It is outright fraudulent behaviour by Defence, well and truly contrary to the aims and objectives and the letter of the FOI Act.

Notably, Defence has previously released invoices and receipts in other FOIs this year, of the same nature, without this sham, again highlighting the malicious and deeply unethical conduct by you here.

Yours sincerely,

Verity Pane

Dear Melissa,

https://www.righttoknow.org.au/request/c...

Was the release of invoice/receipts which contained contract pricing information, no different to that sought, for which no sham or actual trade secrets consultation occurred.

Your claims here are simply untenable nor have you given any reason that hasn’t been ludicrous as to why receipt invoice data for routine travel expenditure is confidential trade secrets.

Again, if this was the case, those documents would have had to have had security/protective markings applied as per Defence’s document management rules, but are unclassified documents.

You are pushing a fraudulent straw man, and you are well aware of it.

Yours sincerely,

Verity Pane

Dear Melissa,

I drew your FOI area’s attention to this on another FOI but clearly needs to be restated here too:

Further on this unethical consultation delay, I would draw your attention to the Commissioner’s (Pilgrim’s) ruling in ‘FX’ and Department of Prime Minister and Cabinet [2015] AICmr 39 (5 June 2015) [at 33]:

PM&C contends that there is nothing in the FOI Act that expressly limits the type or extent of the consultation it chooses to undertake. However, it is implicit in the objectives of the FOI Act (s 3(4)) that an agency will process a request efficiently. Section 3(4) expressly provides that Parliament intends that the functions and powers given by the FOI Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information promptly and at the lowest reasonable cost. Where an agency extends consultation beyond that required by the FOI Act, it increases the processing cost and time.

The seems, of late. to be a substantive abuse of consulting EOTs, far beyond that provided for by the Act, across certain agencies at the moment. It is rather appalling.

Yours sincerely,

Verity Pane

Dear Leonie,

Thank you for this overdue response. It is interesting to note that the claim of national security exemptions in the decision letter (although I have some difficulty accepting that national security implications can be inherent, for something like the redacted reasons for justification of using a hire care, although there is possibly a more reasonable basis for other redactions) where not ones previously relied on, in terms of the ridiculous extension of consultation for trade/business secrets relied upon by Defence to delay access to these documents (it seems this ground was identified after that consultation claim, otherwise the consultation claim would have used the national security claim as well).

The scanned documents are of poor quality, but I can mostly interpret them. It is something of a concern though if supporting financial transaction records are not matching transacted amounts in CMS (I would definitely refer these issues to the CFO Group for further investigation).

To be honest, my interest in these documents was less of my focus, than how Defence managed this FOI (this FOI, and the one that proceeded it) was brought about because of Defence inappropriate and unethical handling of the FOI request of another person in https://www.righttoknow.org.au/request/2... for which Defence claimed practical refusal despite having made no consultations with CFO Group over processing requirements (as confirmed in https://www.righttoknow.org.au/request/r... ).

As my thesis is dealing with the quality of management of FOI and Privacy Act applications by Commonwealth agencies, I was interested to use this as a case study. It has certainly thrown up some deep seated systemic issues with Defence’s management here, that raise considerable concern.

But while my interest was not directed related to the subject content, I feel confident - especially given the public interest in use and misuse of Commonwealth credit cards by Defence (as supported by the references below) - that by publicly publishing this information here on Right to Know will be of assistance to others.

Public interest in these DTC/DPC transactions

http://www.canberratimes.com.au/national...

https://www.dailytelegraph.com.au/news/n...

http://www.abc.net.au/news/2014-01-09/ca...

http://www.couriermail.com.au/news/queen...

http://www.smh.com.au/business/property/...

http://www.couriermail.com.au/news/natio...

Senate Enquiry https://www.aph.gov.au/Parliamentary_Bus...

ANAO https://www.anao.gov.au/work/performance...

Yours sincerely,

Verity Pane