Dear Department of Defence,

Under FOI (Section 17 may apply), I request the top ten highest transactional value transactions (and the related CMS Expense Report, including supporting documentation) recorded in CMS for FY2016/17, for Defence Travel Card (DTC) and Defence Purchasing Card (DPC) expenditures by SES(E) level employees only (that is on cards issued in their name), for the following expense type expenditures:
* Hotel Accommodation
* Cash Advances
* Airfares
* Hospitality
* Car Hire (self drive)
* Taxis or similar car with driver expenditures
* Meals

I also seek the top 10 largest reimbursement payments to DTC/DPC accounts (held by SES(E) level employees) for FY2016/2017 (that is reimbursement using private funds to offset over-payments or non Departmental expenses transacted on DTC/DPC cards in the name of SES(E) level employees).

In accordance with para 6.140 of the Information Commissioner's s 93A FOI Act Guidelines, any public servant’s name, work email address, position or title, contact details, decisions or opinions that may be contained within any document in scope are included in those records because of their usual duties or responsibilities and it would therefore not be unreasonable to disclose (and would not constitute a s 47F exemption ground).

I note that there is a considerable public interest ground in ensuring expenditure and use of Commonwealth funds is transparent, accountable and used appropriately. I also note that there was public media reporting following ANAO's performance audit of Defence's management of DTC/DPC transactions, that even prompted a Senate Committee of Reference to be formed. There are therefore notable public interest grounds to this FOI.

Yours faithfully,

Verity Pane

Dear FOI,

Provided the extant FOI statutory response date is unaltered (that is thirty days from time of original application) should all documents sought not be provided under administrative access (that is a consideration of administrative access is not used unethically to stall and delay an FOI decision, should an intent not to provide all documents sought under administrative access apply), Defence may provide access under administrative release as part of an FOI assessment (The option of providing administrative access to information is available to an agency within the FOI process, if the agency identifies that some or all documents sought could be provided under administrative access, and doesn't require the splitting of the this concurrent activity) .

It appears from your use of the wording - if unable to be actioned under administratively we will then forward it for consideration under FOI - that your request has more to do with setting up additional delay than facilitating early access. After all, you are replying from FOI Operations, and administrative access is intended to provide applicants with quicker, simpler access to requested documents (generally with a couple of days to a fortnight), not to be used to as a stalling tactic.

While an agency may choose to provide administrative access outside the formal FOI Act request process, it also has this ability to do so within the formal FOI Act request process. This may be as informal and flexible as providing information or documents when requested by a member of the public, or collating and releasing data or statistics following a specific request, and then offering those before the statutory period is run out (giving the Applicant the option to withdraw or vary the FOI request). Generally though, administrative access should not be used whether the formal FOI process is the more efficient or more appropriate process, such as when the agency would seek to apply exemptions, and/or there is likely to be review required by the agency of the records sought, as they are not published documents (whether internal or external).

At this stage, where refusal of release under administrative access by Defence is very likely (given Defence will not wish to disclose the information sought), and even if some partial grant is given, Defence would seek to remove information (employee names) that under the FOI Act it is obliged to provide (because names where in the course of their duty), I do not give consent for an extended period of "consideration" by Defence as a stalling tactic and improper use of administrative access, to delay the start of the statutory processing period for the FOI as made.

However, as stated, Defence has my consent to consider administrative access as part of the the FOI application made, and advise accordingly (you can then ask me when you have an actual intent to release, not just for the purpose of seeking an additional consideration period).

Yours sincerely,

Verity Pane

Dear Ms Groves,

If all the records sought can be provided within the next couple of weeks, then Defence may provide access administratively, and I will vary/withdraw the FOI as needed (as it was an FOI request made).

Generally agencies, when identifying access may be given via administrative release, do so within the processing of an FOI application (whether or not it envisages such access), generally forwarding the information/copy of records to the Applicant and asking them whether the information/copy of documents provided satisfies their request, and invites them to vary or withdraw the FOI if it does.

It is not treated as a stand alone process, unless the application only sought administrative access (which is typically not the case, as usually the option to provide access administratively is made as part of an FOI request).

In terms of the FOI request made by me (which specifically referred to s 17, since Defence has a bad habit of ignoring this section of the Act when processing FOI requests, claiming access is to existing documents only, which is misleading), I sought specific and limited CMS/ROMAN records (the recording of a transaction in an electronic information system is indeed a record held by an agency) and supporting documentation, relating to SES(E) employees (a small group, with greater expectations of transparency when it comes to FOI) for a discrete financial year (FY2016/17), for a limited set of ROMAN account codes (as well as DTC/DPC reimbursements by said SES(E) employees).

Furthermore, my application specifically referred to the following:
In accordance with para 6.140 of the Information Commissioner's s 93A FOI Act Guidelines, any public servant’s name, work email address, position or title, contact details, decisions or opinions that may be contained within any document in scope are included in those records because of their usual duties or responsibilities and it would therefore not be unreasonable to disclose (and would not constitute a s 47F exemption ground).

Agencies have wider latitude under administrative access to withhold information, than under FOI, with respect to information about employees provided in the course of their duties, which is of relevance here. If Defence intends to withhold such information under administrative access, it is unlikely the FOI application will be withdrawn.

Defence is, however, entitled to provide any document here it wishes to make available under administrative release, before the statutory due date of the FOI application falls due. If it does, I will review it, and advise Defence whether I wish to vary or withdraw the FOI application (otherwise it continues to proceed) as a result.

Yours sincerely,

Verity Pane

Dear Melissa,

I acknowledge your request for payment of $340 ($85 as deposit) in your Section 29(1) notice. I would like to remind Defence of the Australian Information Commissioner’s position on seeking charges exceeding a modest amount, especially where the agency has not conducted a scoping sample study and bases it’s calculations instead on circumspect calculators of dubious merit.

The Guidelines explain that a charge must not be used to discourage an applicant from exercising the right of access conferred by the FOI Act. Rather, charges should fairly reflect the work involved in providing access to documents on request, and should not be levied where the charges amount requested is exceeded by the costs of collection and any likely increase in Commonwealth costs due to internal review, IC Review, AAT or Federal Court review of the impugned charges assessment.

I am aware that Defence has a rather unethical habit of making spurious charges notices, which it is aware will be challenged, so it can stop the statutory deadline clock if the Applicant seeks internal review or other formalised review mechanism. To avoid all doubt, that is not what I seek nor is what I am doing here. Instead, as per Chapter 4 of the s 93A Freedom of Information Act 1982 Australian Information Commissioner Guidelines, I am inviting Defence to exercise its discretion (which it can exercise at any time, without stopping the statutory deadline clock) as outlined at para 4.9 of those Guidelines to waive the charges.

I will not seek any review, if necessary, until after Defence has completed its FOI decision (Defence is still obligated to have finalised an FOI decision by the statutory due date of 9 October 2017, it can just elect to withhold the decision and documents until these charges are paid, or the 30 day period to review the actual charges decision has expired - which falls after the statutory due date of the decision itself - or review is sought).

For the benefit of Defence, to remind them of their obligations, I have provided relevant extracts of the Guidelines.

4.3 A charge must not be used to discourage an applicant from exercising the right of access conferred by the FOI Act. Rather, charges should fairly reflect the work involved in providing access to documents on request. Implicit in the lowest reasonable cost objective is a prerequisite for sound record keeping so that an agency’s documents can be readily identified and found when an FOI request is received (see [4.32] below).

4.4 A decision to impose a charge should be transparent. An agency should ensure that the notice to an applicant of a charge fully explains and justifies that charge. This can avoid a later dispute over the imposition or amount of a charge.

Charges are discretionary

4.9 Agencies and ministers have a discretion:

• not to impose a charge for the staff time and resources expended in processing an FOI request (reg 3), independently of any request from an applicant requesting that a charge be reduced or waived

• to impose a lower charge than the charge specified in the Charges Regulations (reg 3)

• to reduce or waive a charge upon receiving a request from the applicant (s 29(4)) (see [ ]–[ ] below)

4.10 In applying the Schedule to the Charges Regulations, agencies and ministers should bear in mind that the Schedule was first written in 1982, and that some specific chargeable activities may be outmoded. For example, the use of agency computers to produce copies of electronic documents is nowadays usually a negligible expense.

4.32 An underlying assumption in calculating search and retrieval time is that the agency or minister maintains a high quality record system. Search and retrieval time is to be calculated on the basis that a document will be found in the place indicated in the agency or minister’s filing system (reg 2(2)(a)) or, if no such indication is given, in the place that reasonably should have been indicated in the filing system (reg 2(2)(b)). In summary, applicants cannot be disadvantaged by poor or inefficient record keeping by agencies or ministers.

4.33 Search and retrieval time does not include time spent by agency officers, other than the decision maker, discussing and reviewing the results of search and retrieval activities.

4.54 The Act requires an agency or minister to consider ‘whether the giving of access to the document in question is in the general public interest or in the interest of a substantial section of the public’ (s 29(5)(b)). This test is different to and to be distinguished from public interest considerations that may arise under other provisions of the FOI Act. Specifically, the public interest test for waiver in s 29(5)(b) is different to the public interest test in s 11A(5) that applies to conditionally exempt documents.

4.58 The ‘public interest’ is a concept of wide import that cannot be exhaustively defined. The following examples nevertheless illustrate circumstances in which it may be thought appropriate by an agency or minister to reduce or waive a charge under s 29(5)(b) for granting access to a document under the Act:

• The document relates to a matter of public debate, or a policy issue under discussion within an agency, and disclosure of the document would assist public comment on or participation in the debate or discussion.

• The document relates to an agency decision that has been a topic of public interest or discussion, and disclosure of the document would better inform the public as to why or how the decision was made, including highlighting any problems or flaws that occurred in the decision-making process.

• The document would add to the public record on an important and recurring aspect of agency decision making.

• The document is to be used by a researcher in research that is to be published widely or that complements research being undertaken in an agency or elsewhere in the research community.

• The document is to be used by a community or non-profit organisation in preparing a submission to a parliamentary or government inquiry, for example, on a law reform, social justice, civil liberties, financial regulation or environmental or heritage protection issue.

Other grounds for reduction or waiver

4.61 An agency or minister has a general discretion to reduce or not impose a charge, and this discretion is not limited to financial hardship and public interest grounds. The following non-exhaustive list of examples illustrates circumstances in which it may be thought appropriate to do so:

• The cost of calculating and collecting a charge might exceed the cost to the agency of processing the request.

• The document is required for research purposes for which no commercial benefit will flow to the applicant.

• The document is similar to a document that the agency has published on its website under s 11C of the Act.

• The agency was able to identify and retrieve the document easily and at marginal cost.

• The Information Commissioner or AAT has decided in similar circumstances that charges should not be imposed.

4.67 A decision under the FOI Act declining to reduce a charge or not to impose a charge is an access refusal decision and therefore subject to internal review, IC review and review by the AAT (ss 54, 54L and 57A).

As mentioned in my FOI Application (and it’s ironic that Defence is now seeking charges when it was only suggesting it would release the documents sought administratively instead less than a few days ago, without charge) there is a public interest component here, given we have had a Senate Committee, ANAO public report and multiple news reports on issues with Defence DPC/DTC misuse, and the work will be used to in research to help improve such administration in future.

I therefore encourage Defence to stop trying to game this FOI, provide further detail to justify the estimates given (I will consider any internal advice the Defence FOI team has received, although note the Australian Information Commissioner has in the past questioned a lot of previous processing assumptions made by Defence with respect to FOI charges, including a very recent IC Review as well), and give some realistic estimate.

I am not adverse to making payment if Defence can demonstrate there is a sound justification (but these back of the envelope calculations are just wrong and ridiculous, and made for only one purpose, which is to deter FOI applications and pause the statutory deadline clock for the unwary). Honestly, if Defence spent as much effort just processing FOI applications in good faith, as it did trying to game the system, your in-tray would be a whole lot less busy (it’s a very inefficient and counterproductive waste of Commonwealth resources).

Yours sincerely,

Verity Pane

Dear Melissa,

Further to my reply today, what I need further detail on to assess for reasonableness, is a breakdown of the 20 hours of search and retrevial time.

Can you please demonstrate what portion of that time is for:
* Identifying the PMKEYS numbers of all SES(E) staff that you claim is required;
* Producing the requested DPC/DTC Expense Summary Reports
* Obtaining the documentation that supports the top 10 by value of each travel category
* Obtaining the reimbursement payment data

With it all lumped in together into one generic line, it is difficult to assess the integrity of the calculation, or what may be varied to avoid excessive assessment.

In regards to your claim at para 8 of your letter (reproduced below), Defence may provide what reasons it wishes for the repayment along with any supporting documentation, but for the scope of the FOI as made, it was for the top 10 largest reimbursements for overpayment (whatever the reason for reimbursement was), and therefore your comment “harder to identify” is not the case (it’s just the ten largest reimbursements from the personal funds of the account holder, which given reimbursements are by BPay, should be easy to identify by payment details).
8. The second part of the request relating to repayments onto the DPC/DTC will be harder to identify. While the area should be able to identify payments into the DPC/DTC accounts the reason for the payments may vary.

Yours sincerely,

Verity Pane

Dear Melissa,

Thank you for providing further detail on some of the time estimates. Can you also include the cost estimate for each of those elements identified

* Identifying the PMKEYS numbers of all SES(E) staff that you claim is required (30 minutes) = $?
* Producing the requested DPC/DTC Expense Summary Reports (1 hour) = $?
* Obtaining the documentation that supports the top 10 by value of each travel category (15 minutes for 10 SES Officers for 7 Categories to identify and retrieve the supporting paperwork e.g. 15 minutes x 10 x 7 = 17.5 hours) = $?
* Obtaining the reimbursement payment data (1 hour) = $?

Can you also explain to me why you are basing your calculation on the SES(E) officers personally reviewing and retrieving their own DTC/DPC paperwork, when their CMS transactions are typically processed by their PSO/SO/PA/EA, and not the SES(E) officer themselves (who generally just reviews and signs the paperwork prepared by their support staff at time of CMS reconciliation)?

Yours sincerely,

Verity Pane

Dear Melissa,

Thank you for providing the additional information requested about your calculation.

Section 29(4) of the Freedom of Information Ac provides agencies a discretion to reduce or not to impose a charge.

Section 29(5) of the Freedom of Information Act states that an agency, in deciding whether to waive or reduce a charge, can take into account matters other than financial hardship and the public interest in disclosure.

Section 29(5)(b) of the Act requires an agency or minister to consider ‘whether the giving of access to the document in question is in the general public interest or in the interest of a substantial section of the public’.

The ‘public interest’ is a concept of wide import that cannot be exhaustively defined, but has generally been accepted as satisfied when it relates to a matter of public debate, or public interest.

Over a number of years, there has been repeated media reporting, ANAO and Senate Committee reports into Defence management of DTC/DPC credit cards. How and what Defence is using Commonwealth funds for, is also of long continued interest to members of the public, and has attracted wide media coverage. Also, as the Australian Information Commissioner stated in Australian Associated Press Pty Ltd and Department of Immigration and Border Protection [2016] AICmr 54 (31 August 2016), “To my mind, there is a significant public interest in understanding how and for what purpose public funds are being used”.

This FOI applies for very a minimal sample of only the highest transactions and reimbursements remitted to Defence of all Defence’s Senior Leadership, who are responsible for setting the tone for the rest of the organisation.

A survey I conducted over this past week, of sample size 75, resulted in 93% stating there was a public interest factor in the information sought, to give confidence that Defence was managing Commonwealth resources, with respect to individual issued credit cards, responsibly.

On that basis there is a substantial weight that the charges should be waived on public interest grounds.

I list a few examples of the public interest in these DTC/DPC transactions

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

http://www.dailytelegraph.com.au/news/ns...

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...

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

Senate Enquiry http://www.aph.gov.au/Parliamentary_Busi...

http://www.aph.gov.au/Parliamentary_Busi...

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

I would point Defence to the Australian Information Commissioner’s recent decision in 'KW' and Department of Foreign Affairs and Trade (Freedom of information) [2017] AICmr 21 (13 March 2017) where he said “Giving access to the documents, including giving access to the more general administrative documents, could reasonably be expected to promote transparency relating to the government’s processes”

If Defence refuses to use its own discretion to waive these charges, I seek to vary my FOI such that I no longer request copy of the hard copy invoices and receipts attached to the CMS Summary Expense Reports, and will just accept the digital transaction details and CMS entries in lieu, given the vast bulk of the estimate (17.5 hours) is for those SES(E) officers or their staff to collect and review those hard copy invoices and receipts.

Without that component, the cost falls below that which it would cost Defence to calculate and collect any final charge, and therefore should be waived in line with the Australian Information Commissioner’s Guidelines. Notably the Australian Information Commissioner has previously stated that where the charge assessed is relatively modest (below $500) and there are only a discrete number of documents involved (below 200 pages), those elements, compared against the public interest in the subject matter of the request, would indicate that the giving of access to the documents in question is in the general public interest or, at the very least, in the interest of a substantial section of the public for the purposes of s 29(5) of the FOI Act.

Yours sincerely,

Verity Pane

Dear Melissa,

I agree to the revised scope, just for the sake of avoiding further delay (notwithstanding your views on the public interest grounds having not been met for the whole are untenable).

There is little point doing otherwise given seeking review would allow Defence to cause many months of delay, negating any real benefit.

Thank you for not seeking charges of minimal amounts on the revised scope, that would cost more to collect and process, than the charge itself, in accordance with the Australian Information Commissioner’s Guidelines. I hope Defence will also do the same for the other FOI it is currently seeking minimal charges on, as after all, it has been a few years since agencies could charge $30 for making FOIs as a form of deterrent.

Yours sincerely,

Verity Pane

Dear Melissa,

Thank you for your decision today, and all your documents did come through the first time (including the SOR). No further action required, you may now close this FOI.

Yours sincerely,

Verity Pane