Supporting Documentation for Selected CMS (DTC/DPC) transactions
Verity Pane made this Freedom of Information request to Department of Defence
This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.
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
UNCLASSIFIED
Good afternoon Verity,
Thank you for your FOI inquiry, it has been forwarded for consideration/action.
Regards,
____________________________
Jo Groves
Assistant Director - Information Access
Information Management and Access
Governance & Reform Division
Telephone: (02) 6266 3948
CP1-6-005 [email address]
-----Original Message-----
From: Verity Pane [mailto:[FOI #4130 email]]
Sent: Tuesday, 10 October 2017 2:54 PM
To: FOI requests at Defence
Subject: Freedom of Information request - Supporting Documentation for Selected CMS (DTC/DPC) transactions
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
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UNCLASSIFIED
Dear Ms Pane
I refer to your email dated 10 October 2017 in which you sought access,
under the Freedom of Information Act 1982 (FOI Act), to:
“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 Hospitality
* 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..”
In addition to the above, the Department of Defence excludes personal
email addresses, signatures and personnel (PMKeyS) numbers contained in
documents that fall within the scope of a FOI request unless you
specifically request such details. Defence also excludes duplicates of
documents.
If you do require these personal details, please inform us within five
days of receipt of this email so that the decision maker can consider your
request.
On 23 October 2017, I decided that there are no charges associated with
processing your request. Accordingly, the statutory deadline for you to
receive a response to your request expires on 9 November 2017.
Should you have any questions relating to your request, please do not
hesitate to contact our office via telephone on (02) 6266 2200 or via
email to [1][email address].
Yours sincerely
Melissa Davidson
Assistant Director - Information Access
Information Management and Access
Governance and Reform Division
Department of Defence | CP1-6-008|
PO Box 7910 | CANBERRA BC ACT 2610
Ph: 02 626 63678
Fax: 02 626 62112
email: [2][email address]
[3]http://www.defence.gov.au/FOI/privacy.asp
Please note that I work Mon - Thur
IMPORTANT: This email remains the property of the Department of Defence
and is subject to the jurisdiction of section 70 of the Crimes Act 1914.
If you have received this email in error, you are requested to contact the
sender and delete the email.
References
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2. mailto:[email address]
file:///tmp/blocked::mailto:[email address]
3. http://www.defence.gov.au/FOI/privacy.asp
file:///tmp/blocked::http:/www.defence.gov.au/FOI/privacy.asp
UNCLASSIFIED
Good evening Ms Pane
1. I refer to your correspondence dated, 10 October
2017, in which you sought access, under the Freedom of Information Act
1982 (FOI Act), to:
“supporting documentation for the following CMS Transaction Reports given
in
[1]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 Hospitality
* 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..”
In addition to the above, the Department of Defence excludes personal
email addresses, signatures and personnel (PMKeyS) numbers contained in
documents that fall within the scope of a FOI request unless you
specifically request such details. Defence also excludes duplicates of
documents.
2. In my email dated 24 October 2017 you were advised
that there were no charges associated with processing your request and
that the statutory deadline for a response to this request was 9 November
2017.
3. Your request was forwarded to the Chief Finance
Officer (CFO) Group for consideration. The Accredited Decision Maker in
CFO has advised that your request covers documents which contain
information of a commercial nature of a number of third parties.
4. The Accredited Decision Maker has determined that
there is requirement to consult the third parties under section 27 of the
FOI Act, before making a decision on the release of the documents.
5. Subsection 15(6) of the FOI Act provides for an
extension of 30 days to the statutory time limit for processing requests.
Therefore, the deadline for providing you with the decision on your
request is now 8 December 2017.
6. I would be grateful if you could confirm if the FOI
Directorate could disclose your identity as the applicant to the third
parties for the purpose of consultation. While you are under no obligation
to reveal your identity as the applicant and we will not disclose your
identity without consent, in our experience, third parties will generally
be more likely to object to the release of their information if they do
not know who the applicant is.
7. Should you have any questions relating to your
request, please do not hesitate to contact our office via telephone on
(02) 6266 2200 or via email to [2][email address].
Yours sincerely
Melissa Davidson
Assistant Director - Information Access
Information Management and Access
Governance and Reform Division
Department of Defence | CP1-6-008|
PO Box 7910 | CANBERRA BC ACT 2610
Ph: 02 626 63678
Fax: 02 626 62112
email: [3][email address]
[4]http://www.defence.gov.au/FOI/privacy.asp
Please note that I work Mon - Thur
IMPORTANT: This email remains the property of the Department of Defence
and is subject to the jurisdiction of section 70 of the Crimes Act 1914.
If you have received this email in error, you are requested to contact the
sender and delete the email.
From: Davidson, Melissa MRS
Sent: Tuesday, 24 October 2017 12:52 PM
To: '[FOI #4130 email]'
Subject: 171024 1251 - [Davidson, Melissa
MRS]-['[FOI #4130 email]'] FOI Request
138/17/18 - Formal Acknowledgement
UNCLASSIFIED
Dear Ms Pane
I refer to your email dated 10 October 2017 in which you sought access,
under the Freedom of Information Act 1982 (FOI Act), to:
“supporting documentation for the following CMS Transaction Reports given
in
[5]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 Hospitality
* 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..”
In addition to the above, the Department of Defence excludes personal
email addresses, signatures and personnel (PMKeyS) numbers contained in
documents that fall within the scope of a FOI request unless you
specifically request such details. Defence also excludes duplicates of
documents.
If you do require these personal details, please inform us within five
days of receipt of this email so that the decision maker can consider your
request.
On 23 October 2017, I decided that there are no charges associated with
processing your request. Accordingly, the statutory deadline for you to
receive a response to your request expires on 9 November 2017.
Should you have any questions relating to your request, please do not
hesitate to contact our office via telephone on (02) 6266 2200 or via
email to [6][email address].
Yours sincerely
Melissa Davidson
Assistant Director - Information Access
Information Management and Access
Governance and Reform Division
Department of Defence | CP1-6-008|
PO Box 7910 | CANBERRA BC ACT 2610
Ph: 02 626 63678
Fax: 02 626 62112
email: [7][email address]
[8]http://www.defence.gov.au/FOI/privacy.asp
Please note that I work Mon - Thur
IMPORTANT: This email remains the property of the Department of Defence
and is subject to the jurisdiction of section 70 of the Crimes Act 1914.
If you have received this email in error, you are requested to contact the
sender and delete the email.
References
Visible links
1. https://www.righttoknow.org.au/request/t...
2. mailto:[email address]
3. mailto:[email address]
file:///tmp/blocked::mailto:[email address]
4. http://www.defence.gov.au/FOI/privacy.asp
file:///tmp/blocked::http:/www.defence.gov.au/FOI/privacy.asp
5. https://www.righttoknow.org.au/request/t...
6. mailto:[email address]
7. mailto:[email address]
file:///tmp/blocked::mailto:[email address]
8. http://www.defence.gov.au/FOI/privacy.asp
file:///tmp/blocked::http:/www.defence.gov.au/FOI/privacy.asp
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
UNCLASSIFIED
Good afternoon Ms Pane
I apologise for the delay in responding.
Please be advised that the Defence decision maker identified material in the documents that she considered required consultation under section 27 of the FOI Act before finalising the decision. The material included pricing information of third parties.
I understand your frustrations with the process but please be assured we are working on the request and will provide the documents as soon as possible.
I hope you do not consider it necessary to formally make a complaint, but this avenue is available to you.
Kind regards
Melissa Davidson
Assistant Director - Information Access
Information Management and Access
Governance and Reform Division
Department of Defence | CP1-6-008|
PO Box 7910 | CANBERRA BC ACT 2610
Ph: 02 626 63678
Fax: 02 626 62112
email: [email address]
http://www.defence.gov.au/FOI/privacy.asp
Please note that I work Mon - Thur
-----Original Message-----
From: Verity Pane [mailto:[FOI #4130 email]]
Sent: Wednesday, 15 November 2017 2:23 PM
To: Davidson, Melissa MRS
Subject: Re: FOI Request 138/17/18 - Notification of extension for third party consultation [SEC=UNCLASSIFIED]
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
-----Original Message-----
UNCLASSIFIED
Good evening Ms Pane
1. I refer to your correspondence dated, 10 October 2017, in which you sought access, under the Freedom of Information Act
1982 (FOI Act), to:
“supporting documentation for the following CMS Transaction Reports given in
[1]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 Hospitality
* 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..”
In addition to the above, the Department of Defence excludes personal email addresses, signatures and personnel (PMKeyS) numbers contained in documents that fall within the scope of a FOI request unless you specifically request such details. Defence also excludes duplicates of documents.
2. In my email dated 24 October 2017 you were advised that there were no charges associated with processing your request and that the statutory deadline for a response to this request was 9 November 2017.
3. Your request was forwarded to the Chief Finance Officer (CFO) Group for consideration. The Accredited Decision Maker in CFO has advised that your request covers documents which contain information of a commercial nature of a number of third parties.
4. The Accredited Decision Maker has determined that there is requirement to consult the third parties under section 27 of the FOI Act, before making a decision on the release of the documents.
5. Subsection 15(6) of the FOI Act provides for an extension of 30 days to the statutory time limit for processing requests. Therefore, the deadline for providing you with the decision on your request is now 8 December 2017.
6. I would be grateful if you could confirm if the FOI Directorate could disclose your identity as the applicant to the third parties for the purpose of consultation. While you are under no obligation to reveal your identity as the applicant and we will not disclose your identity without consent, in our experience, third parties will generally be more likely to object to the release of their information if they do not know who the applicant is.
7. Should you have any questions relating to your request, please do not hesitate to contact our office via telephone on
(02) 6266 2200 or via email to [2][email address].
Yours sincerely
Melissa Davidson
Assistant Director - Information Access
Information Management and Access
Governance and Reform Division
Department of Defence | CP1-6-008|
PO Box 7910 | CANBERRA BC ACT 2610
Ph: 02 626 63678
Fax: 02 626 62112
email: [3][email address]
[4]http://www.defence.gov.au/FOI/privacy.asp
Please note that I work Mon - Thur
IMPORTANT: This email remains the property of the Department of Defence and is subject to the jurisdiction of section 70 of the Crimes Act 1914.
If you have received this email in error, you are requested to contact the sender and delete the email.
From: Davidson, Melissa MRS
Sent: Tuesday, 24 October 2017 12:52 PM
To: '[FOI #4130 email]'
Subject: 171024 1251 - [Davidson, Melissa MRS]-['[FOI #4130 email]'] FOI Request
138/17/18 - Formal Acknowledgement
UNCLASSIFIED
Dear Ms Pane
I refer to your email dated 10 October 2017 in which you sought access, under the Freedom of Information Act 1982 (FOI Act), to:
“supporting documentation for the following CMS Transaction Reports given in
[5]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 Hospitality
* 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..”
In addition to the above, the Department of Defence excludes personal email addresses, signatures and personnel (PMKeyS) numbers contained in documents that fall within the scope of a FOI request unless you specifically request such details. Defence also excludes duplicates of documents.
If you do require these personal details, please inform us within five days of receipt of this email so that the decision maker can consider your request.
On 23 October 2017, I decided that there are no charges associated with processing your request. Accordingly, the statutory deadline for you to receive a response to your request expires on 9 November 2017.
Should you have any questions relating to your request, please do not hesitate to contact our office via telephone on (02) 6266 2200 or via email to [6][email address].
Yours sincerely
Melissa Davidson
Assistant Director - Information Access
Information Management and Access
Governance and Reform Division
Department of Defence | CP1-6-008|
PO Box 7910 | CANBERRA BC ACT 2610
Ph: 02 626 63678
Fax: 02 626 62112
email: [7][email address]
[8]http://www.defence.gov.au/FOI/privacy.asp
Please note that I work Mon - Thur
IMPORTANT: This email remains the property of the Department of Defence and is subject to the jurisdiction of section 70 of the Crimes Act 1914.
If you have received this email in error, you are requested to contact the sender and delete the email.
References
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-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #4130 email]
This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/offi...
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
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IMPORTANT: This email remains the property of the Department of Defence and is subject to the jurisdiction of section 70 of the Crimes Act 1914. If you have received this email in error, you are requested to contact the sender and delete the email.
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
Verity Pane left an annotation ()
Also worth noting that the previous FOI that these documents were within scope of, before I split the FOI to get around the onerous charges Defence tried to seek (far beyond the costs of processing), that no s 27 consultation was ever sought. Only claimed now, as a bid by Defence to frustrate access.
UNCLASSIFIED
Good afternoon Ms Pane,
Thank you for your trailing email.
As you will appreciate, Paragraph 6.143 of the Information Commissioner’s guidelines state ‘Where a document includes business information relating to a person, organisation or undertaking other than the applicant, an agency or minister should give that individual or organisation (the third party) a reasonable opportunity to make a submission that the document should be exempt from disclosure under s 47 (trade secrets) or conditionally exempt under s 47G and that disclosure would be contrary to the public interest, before making a decision to give access (s 27).’ After establishing a document contains business information of a third party Defence decision makers then consider whether disclosure of that information would be unreasonable and contrary to the public interest.
Importantly, paragraph 6.206 of the guidelines state ‘Agencies and ministers should generally start from the position that a third party might reasonably wish to make a submission. This is because the third party may bring to the agency or minister’s attention sensitivities that may not otherwise have been apparent.’ As such it is necessary to consult the third party as they may reasonable wish to contend that the document contains business information that is exempt under section 47G of the FOI Act and is contrary to the public interest to release. Should the third party consulted not object to disclosure of business information the document will be released as part of the final decision package.
Under the provisions of section 54 of the FOI Act, you are entitled to request a review of this decision once finalised. Your review rights will be provided to you as part of the final decision package. You can also complain about an agency’s actions under the Freedom of Information Act 1982 (FOI Act). Further information on making a complaint is available from the Office of the Australian Information Commissioner’s website: www.oaic.gov.au/freedom-of-information/f....
Please be advised that the Department is processing your request and will provide a response to you by 9 December 2017.
Kind regards
Melissa Davidson
Assistant Director - Information Access
Information Management and Access
Governance and Reform Division
Department of Defence | CP1-6-008|
PO Box 7910 | CANBERRA BC ACT 2610
Ph: 02 626 63678
Fax: 02 626 62112
email: [email address]
http://www.defence.gov.au/FOI/privacy.asp
Please note that I work Mon - Thur
-----Original Message-----
From: Verity Pane [mailto:[FOI #4130 email]]
Sent: Wednesday, 22 November 2017 11:57 AM
To: Davidson, Melissa MRS
Subject: 171122 1156 - [Verity Pane]-[Davidson, Melissa MRS] FOI Request 138/17/18 - Notification of extension for third party consultation
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
-----Original Message-----
UNCLASSIFIED
Good afternoon Ms Pane
I apologise for the delay in responding.
Please be advised that the Defence decision maker identified material in the documents that she considered required consultation under section 27 of the FOI Act before finalising the decision. The material included pricing information of third parties.
I understand your frustrations with the process but please be assured we are working on the request and will provide the documents as soon as possible.
I hope you do not consider it necessary to formally make a complaint, but this avenue is available to you.
Kind regards
Melissa Davidson
Assistant Director - Information Access
Information Management and Access
Governance and Reform Division
Department of Defence | CP1-6-008|
PO Box 7910 | CANBERRA BC ACT 2610
Ph: 02 626 63678
Fax: 02 626 62112
email: [email address]
http://www.defence.gov.au/FOI/privacy.asp
Please note that I work Mon - Thur
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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
UNCLASSIFIED
Good afternoon Ms Pane,
1. Please find attached the Statement of Reasons and documents relating
to FOI 138/17/18.
FOI Disclosure Log
2. In accordance with the requirements of section 11C of the FOI Act,
Defence is required to publish details of information released under the
FOI Act. Defence publishes identified documents relating to requests
within five working days of receipt by the applicant or immediately
following any publication of the released material. Defence will also
publish the statement of reasons with privacy deletions. This request
will be published immediately.
Rights of Review
3. Under the provisions of section 54 of the FOI Act, you are entitled
to request a review of this decision. Your review rights are attached.
4. Should you have any questions in regard to this matter please
contact this office.
Kind Regards,
FOI Operations
Information Management Access
Governance and Reform Division
Department of Defence | CP1-6-001|
PO Box 7910 | CANBERRA BC ACT 2610
Ph: 02 6266 2200
email: [1][email address]
IMPORTANT: This email remains the property of the Department of Defence
and is subject to the jurisdiction of section 70 of the Crimes Act 1914.
If you have received this email in error, you are requested to contact the
sender and delete the email.
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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
Verity Pane left an annotation ()
This claim that information provided in receipts and invoices sought would satisfy s 27A, which generally only applies to sensitive commercial information contained in contracts or technical drawings, is ridiculous and untenable.
Infotmation previously obtained showed that some charges were waived by Defence due to employee fraud, and the most likely explanation for this unethical conduct by Defence is that they wish to delay access for that reason, but no exemption ground for that applies, so have instead engaged in a sham with another exemption, that might survive first looks (provided no-one asks any questions).
Unfortunately for Defence, I ask questions, and am aware the threshold for s 27A cannot be met for documents of this nature.
Defence remains one of the worst offenders for the unethical handling of FOI. It’s a great pity that we get the ineffectual and tainted OAIC here in Australia, that let’s such behaviours by Defence get a free pass, and not someone like New Zealand’s Chief Ombudsman Dame Beverley Wakem DNZM, CBE, who recently told public agencies off with her report “It’s not a game of hide and seek” http://www.ombudsman.parliament.nz/ckedi...
Certainly Defence’s FOI area continues to scrape the depths of unethical conduct with such games as being shown here.