Dear Office of the Australian Information Commissioner,

I request administratively, but failing that, under FOI, details on if, and when, the Information Commissioner has ever used the powers provided to him under s 44 and/or s 45 of the Privacy Act. As you'll be aware s 44 allows the Information Commissioner to compel the production of information, documents or require the attendance of a person before him, and s 45 allows the Information Commissioner to examine a witness called under his s 44 powers under oath.

Now this information sought might be available in discrete records, or it may not. If not, then I seek the OAIC to follow s 17 and produce it as a discrete record - "where it appears from the request that the desire of the applicant is for information that is not available in discrete form in written documents of the agency, and the agency could produce a written document containing the information in discrete form from resources ordinary available to it, the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, the FOI Act applies as if the agency had such a document in its possession".

If it is to be compiled, what I would like is a list detailing the following:
* The date the power was used
* The name of the respondent it was used on (note PI is only for private individuals, not organisations or agencies, or those carrying out activities in a official capacity for either of those entities - the Privacy Act only protects private individuals)
* What was sought (in terms of whether it was information, documents, or a person directed to give evidence)

If these powers have never been used, then I would seek an explicit statement saying that.

Yours faithfully,

Verity Pane

Dear Raewyn,

Yes, that is correct. This is a simple and straightforward one, so hopefully should be fairly easy. If discrete records already exist, but contain irrevelant or personal information, and the OAIC prefers not to compile, then you can redact such information not sought.

Yours sincerely,

Verity Pane

Dear Raewyn,

If you refer back to my request as made, at the first entry on this RtK FOI, you will see I sought access administratively in the first instance, but if refused, then under FOI saying:
"Now this information sought might be available in discrete records, or it may not. If not, then I seek the OAIC to follow s 17 and produce it as a discrete record"

That FOI application clearly states s 17 access applies only where the discrete records do not exist, or as an alternative to providing discrete documents. Inherent in the s 44 exercise of powers is that the Information Commissioner must communicate that to the party that documents, information, or attendance is compelled from. That would be, given the nature of s 44, by formal letter or (worse case) email and these are discrete documents (so, if the OAIC believes it can justify at law that no process to summarise is reasonable, it can provide the documents redacted as required instead, and I can summarise myself).

You state that such documents likely exist, but you have not searched for them, giving reasons akin to a practical refusal decision, while nonetheless having neither engaged in any consultation process nor conducted any preliminary scoping, contrary to the s 93A Information Commissioner Guidelines, as required when a practical refusal reason is used to avoid disclosure.

For that reason I seek internal review of your decision. I also note it was open to you, given how long Caren Whip, the OAIC's principal legal officer (who would have been involved with any s 44 use of powers decision), has been with the OAIC, to do as you did with the s 45 part and simply ask relevant staff and release that "no, it hasn't happened" response administratively.

It seems what this really is about is that the OAIC doesn't wish to admit it has never used either s 44 or it's s 45 powers (I guess because of the inferences involved), and while feeling it's no big thing on the s 45 powers, feels a bit exposed on the s 44 powers failure and chooses to engage in unethical opaqueness (where an agency has legislative coercive powers, it is generally recognised as appropriate that the use of those powers should be subject to some public disclosure, where it would not undermine the process, and certainly providing in summary form poses no risk).

As the OAIC is supposed to be providing leadership to the WoG and APP entities on FOI and Privacy, it is disappointing this sort of hand waving response was received, without proper process followed, contrary to the OAIC's statutory obligations here.

Yours sincerely,

Verity Pane

Dear Raewyn,

Unless you contend that the OAIC exercises s 44 powers by oral communications only, and never makes note of it, then there must be a written record of such exercise. Therefore documents do exist, despite your response (what you are really claiming is that no summary document exists, yet that is not the requirement under the Act, nor even was the FOI request as framed limited to just a s 17 compilation).

The OAIC stated it hasn't used its s 45 powers (and has verified no documents of such exercise exist) but the OAIC refuses to search for any document that confirms it has used its s 44 powers (the FOI Act is for documents, not unsupported claims), although it claims such exist.

Your refusal to search constitutes a deemed refusal of this FOI (on your inferred ground of unreasonable burden), and the practical refusal consultation process should have been followed as soon as you came to that mindset, which required you at the very least to do more than just claim it's all too hard as a throwaway line (scoping study/sample was required).

Either s 44 powers were exercised (and documents will be held by the OAIC to verify that, which come with the scope of the FOI Request made), or they weren't (but what you had was a response of spin, having a two way bet - claiming s 44 powers were used, but refusing to even search for said documents verifying that).

The obligations were clear cut under the FOI Act and the OAIC did not handle this FOI in accordance with them. I don't appreciate your snark either (when you are the one who failed to process in accordance with the FOI Act, when as an OAIC officer, I'm sure you know the practical refusal obligations of consultation and scoping/sample study to justify practical refusal decisions as much as I do).

If the OAIC had complied with the FOI Act and the Guidelines here, Internal Review would be unnecessary (even if the OAIC had refused to release after demonstrating unreasonable burden properly, not just on a empty claim).

Yours sincerely,

Verity Pane