Use of Privacy Act s44 and s45 powers
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.
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
Our reference: FOIREQ17/00036
Dear Ms Pane
Your Freedom of Information request
I refer to your request for access to documents received on 1 June 207.
You asked that your request be treated administratively in the first
instance, and under the Freedom of Information Act 1982 (Cth) (the FOI
Act) if it cannot be fulfilled under administrative access.
You sought access to:
1. The date on which the Information Commissioner has used the powers
given to him under ss 44 and 45 of the Privacy Act 1988.
2. The name of the respondent the powers were used on.
3. What was sought (information, documents or a person directed to
give evidence).
The position of Australian Information Commissioner was established under
the Australian Information Commissioner Act 2010 with effect from 1
November 2010. As a result, I take your request to be for the above items
for the period from 1 November 2010 to date.
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 on which we received it.
We received your request on 1 June 2017. Therefore we must process your
request by Monday 3 July 2017 (the 30-day processing period ends on
Saturday 1 July 2017, however due to the operation of s 36 of the Acts
Interpretation Act 1901, the due date becomes the next working day).
However, s 15(6) of the FOI Act allows us a further 30 days when we need
to consult with third parties about certain information, such as business
documents or documents affecting their personal privacy. We will advise
you if this is necessary.
Disclosure Log
Information released under the FOI Act may later be published online on
our [1]disclosure log, subject to certain exceptions (for example,
personal information will not be published where this would be
unreasonable.)
If you would like to discuss this matter please contact me on (02) 9284
9802 during business hours or by email at [2][email address].
Regards
Raewyn Harlock | Assistant Director | FOI Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218 SYDNEY NSW 2001 | [3]www.oaic.gov.au
Phone: +61 2 9284 9802 | Email: [4][email address]
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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 Ms Pane
A decision in response to the freedom of information request you made on 1
June 2017 is attached.
Regards
Raewyn Harlock | Assistant Director | FOI Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218 SYDNEY NSW 2001 | [1]www.oaic.gov.au
Phone: +61 2 9284 9802 | Email: [2][email address]
Protecting information rights – advancing information policy
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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 Ms Pane
I acknowledge receipt of your application for internal review of the
OAIC’s FOI decision dated 29 June 2017.
Section 54C of the Freedom of Information Act 1982 requires this office to
make a fresh decision within 30 days after the day we received your
application. Because we received your application on 29 June 2017, we must
make a fresh decision by Monday 30 July 2017 (the 30-day processing period
ends on Saturday 29 July 2017, however due to the operation of s 36 of the
Acts Interpretation Act 1901, the due date is the next working day).
Your application will be allocated to a review officer with no previous
involvement with the earlier decision.
Response to statements in your application
In your email of 29 June 2017, you state ‘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 did not refuse you access to the documents you requested on the basis
that this office does not want to admit we have never used either
provision. Page two of the decision dated 29 June 2017 states ‘The
Information Commissioner has not used his power under s 45 of the Privacy
Act 1988 to examine witnesses.’ The powers in s 44 are used by staff.
However, as stated in the decision, there are no existing documents
containing the information you seek and s 17 does not require this office
to manually search all privacy complaints to create one.
Further to your comment that I did not search for the documents you
requested, the decision states ‘In relation to the exercise of powers
under s 44 of the FOI Act, I have asked all relevant staff, including the
Assistant Commissioner of the Dispute Resolution Branch, the Principal
Legal Officer and the reporting team whether the OAIC has a document
containing the information specified in your freedom of information
request.‘
Regards
Raewyn Harlock | Assistant Director | FOI Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218 SYDNEY NSW 2001 | [1]www.oaic.gov.au
Phone: +61 2 9284 9802 | Email: [2][email address]
Protecting information rights – advancing information policy
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-----Original Message-----
From: Verity Pane [mailto:[FOI #3596 email]]
Sent: Thursday, 29 June 2017 2:16 PM
To: Raewyn Harlock <[email address]>
Subject: Internal review of Freedom of Information request - Use of
Privacy Act s44 and s45 powers
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
-----Original Message-----
Dear Ms Pane
A decision in response to the freedom of information request you made on 1
June 2017 is attached.
Regards
Raewyn Harlock | Assistant Director | FOI Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218 SYDNEY NSW 2001 |
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Phone: +61 2 9284 9802 | Email: [2][email address]
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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
Verity Pane left an annotation ()
It's worth pointing out that any use of s 44 Privacy Act coercive powers (which given the lack of any publicly available evidence to that effect, is very doubtful indeed) is never going to occur during any stage prior to a s 52 Determination (because the OAIC only makes preliminary enquiries, if any, before a decision to proceed to s 52 Determination (which is where any actual investigation is supposed to happen), of which only a handful of Determinations have been issued.
Furthermore, it is extremely unlikely that the Information Commissioner would ever exercise those coercive powers with respect to federal government agencies (given the legal onus on and Executive direction to federal agencies to assist the Commissioner), which means that any potential excercise of such powers is limited to APP entities other than federal agencies (of which only a handful of Determinations have been made where the Respondent is not a federal government agency).
Interviews conducted with former OAIC staff support that since Timothy Pilgrim has been the Information Commissioner czar, the OAIC has not used its s 44 or s 45 coercive powers (and the OAIC is aware that this is the case, by direction of the current senior executive).
Dear Ms Pane,
I am writing to provide you with my decision on your Internal Review application for your FOI request relating to the Information Commissioner's use of ss 44 and 45 of the Privacy Act.
My decision is attached.
Kind regards
Ken Richards | Assistant Director | FOI Dispute Resolution
Office of the Australian Information Commissioner
Level 3, 175 Pitt Street, SYDNEY NSW 2000
GPO Box 5218 SYDNEY NSW 2001| www.oaic.gov.au
Phone: +61 2 9284 9894
Email: [email address]
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Verity Pane left an annotation ()
Under the Freedom of Information Act 1982 (Cth) the agency bears the onus of proof in establishing that processing the applicant’s request would substantially and unreasonably divert its resources from its other operations, and that requires the agency to explain the basis upon which it had determined that a practical refusal reason exists, including a valid estimate of the processing time the applicant’s request would require.
It is not acceptable to merely claim, unsupported by objective facts, that a search for documents within the scope of the FOI request would be an unreasonable burden.
The Guidelines explain that in circumstances, such as this, an agency could obtain an accurate estimate through sampling a reasonable selection of the records likely to contain the requested documents (such as over a limited timeframe). relevant documents. It is not acceptable for an agency to take the view that this was not necessary. Generally agencies should sample at least 10% of the documents that fall within the scope of the applicant’s request.
Importantly poor record keeping or an inefficient filing system cannot, by themselves, be used as grounds to refuse to search for documents within the scope of the FOI request (that is the agency's self-inflicted issue, not the Applicant's).
Given the type of documents sought, which relate to the use of coercive legislative powers, that require the individual approval of the Information Commissioner and the OAIC's Principal Legal Officer (Caren Whip) to be used, it is very unconvincing that claims such records are poorly stored and unable to be reasonably accessed by OAIC staff, given the significant nature of such documents (both in the legal and administrative sense) - it is not a trivial or inconsequential administrative matter of little note, and use of coercive powers by agencies is highly scrutinised both inside and outside government.