Dear Office of the Australian Information Commissioner,

The Project TV reported on changes proposed by the Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016, namely the power for the Secretary of the Commonwealth Department of Veterans' Affairs (DVA) to "leak" (as Deputy Prime Minister Barnaby Joyce stated in his interview with The Project TV) otherwise protected personal information about a veteran or veterans who complain about DVA's regular abuses of power and unethical behaviour. A copy of that segment and interview are here https://tenplay.com.au/channel-ten/the-p...

The amendments in Schedule 2 of the Bill give essentially wide discretion to the Secretary of DVA to disclose otherwise protected personal information about a veterans or veterans, to anyone the Secretary chooses, that would otherwise be unlawful under the Privacy Act and, potentially, defamation law. All that is required is for the Secretary to claim that doing so is in the "public interest", with no real safety net - the Secretary of DVA has no real objective test to meet in relation to what is the "public interest" - it is whatever he or she claims it to be.

In a statement provide by the Minister of Veterans' Affairs Dan Tehan, to The Project TV (copy to be found here https://tenplay.com.au/channel-ten/the-p... ), the Minister for DVA said:
"This Bill passed the House with bipartisan support after three months of public exposure, which included the scrutiny of two Senate committees, a public hearing and submissions, cross-party consultation, consultation with the Privacy Commissioner and the Commonwealth Ombudsman and consultation with the ex-service community. The government took on board all suggestions and recommendations throughout this process. The Bill has also undergone a privacy impact assessment. We have consulted extensively and nothing will happen without the support of Parliament."

I request copy of all notes, records, minutes, and any and all other documents and records in the OAIC's possession and/or control that relate to this "consultation with the Privacy Commissioner" that DVA and/or the Minister for Veterans' Affairs or any other Commonwealth official or Minister had with the OAIC (whether directly with the Privacy Commissioner or any staff member of the OAIC).

As this matter is being publicly reported and debated in the media, and has generated considerable controversy, this is a matter of public importance and interest, and given these "consultations" are fairly recent events (the subject of Hot Issues Briefs and Question Time Briefs, etc), these records will be well known to OAIC staff and immediately to hand. I therefore argue that it would contrary to the objects and objectives of the Freedom of Information Act to seek to levy charges for access.

Furthermore, I do not consent to the redaction or obfuscation of the names of Commonwealth officials and elected representatives, in any records that fall within the scope of this FOI request.

The routine disclosure of information about the names, and positions of government employees in the conduct of public functions is now an important accepted element in the transparency and accountability framework within which government operates in Australia [see The Freedom of Information Act of Western Australia (Schedule 1 Clause 3) for formally legislated example].

Where public servants’ personal information is included in a document because of their usual duties or responsibilities, it would not be unreasonable to disclose unless special circumstances existed. This is because the information would reveal only that the public servant was performing their public duties. Such information may often also be publicly available, such as on an agency website.

Where access is sought to information about an individual’s work related activities in the agency, such as the name of an employee, the manner in which the individual carried out tasks or behaviour in the workplace, it is unlikely that disclosure would be unreasonable unless the information went beyond work related matters to the personality, private characteristics or disposition of the individual.

It would not be reasonable for officers to contend that their names when associated with their work is exempt, unless that person already has a protected status due to DVO, covert duties, etc (that is, present a substantive and objective increase in endangerment of the life or physical safety of the person concerned).

As Justice Mahoney held "The fact that a person is a public servant involved in a particular transaction or on duty at a particular time may, in some circumstances, 'involve' the disclosure of information concerning his personal affairs... Whether it will do so will depend upon the circumstances and what is suggested to be 'involved'. In the present case, the suggestion is essentially that what will be disclosed is that the person took part in the passage of information... That, I think, is not part of 'the personal affairs' of the persons in question: it is part only of their public duties and the discharge of them. But it was submitted, at least at one stage, that the mere fact that a person, a public servant, performs a particular function or performed it on a particular occasion is part of 'private affairs'. Special cases apart, I do not think that this would be so. I do not think that it is this which the exemption was intended to protect."

Similarly Justice Kirby stated "It cannot properly be said that the disclosure of the names of... [public sector] employees involved in the preparation of reports... can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned. Nor should there be. It is quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed. Such information would attract the exemption. But the name of an officer or employee doing no more than the apparent duties of that person could not properly be classified as information concerning the 'personal affairs' of that person. The affairs disclosed are not that person's affairs but the affairs of the agency."

See also:
'HJ' and Australian Federal Police [2015] AICmr 71 (6 November 2015)
Stephen Waller and Department of Environment [2014] AICmr 133

However I have no objection to the redaction of irrevalant information such as the telephone numbers or other contact details of Commonwealth officials or elected officials in any such record that falls within the scope of this FOI request.

Yours faithfully,

Verity Pane

Dear Amanda Nowland,

Where an identical document or email appears elsewhere in records within the scope of this FOI request, I consent it to not being required to be provided/noted in the FOI documents schedule, provided at least one copy is provided in the FOI response (note annotations, notes or comments on a copy of a document/record means it is no longer an identical copy, therefore consent is not given in these circumstances).

If the OAIC seeks to consult with other parties, it is requested that the OAIC explicitly give notice of its intent to do so, at the time it makes that decision (not sit on it until the statutory period expires), so that transparent and accountable management of this FOI is provided.

FOI response should be through Right to Know, so that other interested parties need not make duplicate requests for the same information (which I assume is what you mean by responding to the email address), which promotes efficiency and effectiveness of FOI communication.

Yours sincerely,

Verity Pane

Dear Amanda Nowland,

On March 21, the Commonwealth Ombudsman (Jim Robertson) posted a response to a related FOI request here at Right To Know (https://www.righttoknow.org.au/request/c...) that stated:
"Your email to our office on 4 March emphasised that you would not agree to
the redaction of the names of public servants which appear in the material
matching your request. However, I understand that you have since advised
OAIC that they may exclude contact details of government agency staff
(including telephone numbers and email addresses) from the material."

No such agreement has been made with the OAIC regarding the exclusion of the names of Commonwealth officials carrying out their functions in any documents/records within the scope of this or any of the related FOIs. It appears the OAIC has wrongly advised the Commonwealth Ombudsman as to this material fact.

I refer you to my original FOI request as to why this practice (which is not covered by the legislation, and is indeed contrary to it) is unethical, and why I do not consent to such underhanded opaque measures. Accountability is an foundation cornerstone of public administration, the redaction of the identity of those who produce such records is an antithesis of that.

Yours sincerely,

Verity Pane

Dear Amanda Nowland,

On March 13, I gave response to you in relation to your query regarding whether duplicate documents were necessary to be provided as part of this FOI request (to which I gave consent that it was not necessary to provide duplicates nor report duplicates in the FOI schedule, as this would be an unnecessary impost).

In that response (second paragraph) I also asked the OAIC to:
"If the OAIC seeks to consult with other parties, it is requested that the OAIC explicitly give notice of its intent to do so, at the time it makes that decision (not sit on it until the statutory period expires), so that transparent and accountable management of this FOI is provided."

It was therefore disappointing to receive advice, second hand, not from the OAIC but the Commonwealth Ombudsman - in an aside - that the OAIC and the Commonwealth Ombudsman have been colluding unannounced until now, in relation to this FOI made to the OAIC.

It is evident that such an arrangement has been taking place for some time, given Jim Robertson of the Commonwealth Ombudsman disclosure here on the 21st March, on Right to Know (https://www.righttoknow.org.au/request/c... ):
"In the meantime, we are coordinating with the OAIC to assist with their response to a similar application from yourself." [how a seperate Commonwealth agency assists another seperate Commonwealth agency locate and report OAIC records within the scope of the FOI request, when only the OAIC has the access to its own records, is curious - unless of course the intent is to unethically collude and spin a joint response that has little to do with the objects and aims of the FOI Act, and more to do with political games]

It is contrary to good public administration, when such a reasonable request for notice is made for any consultation with other parties takes place, for such information to be concealed by the OAIC. It would cause a reasonable person to question why the OAIC chose not to disclose this fact, when a request was previously made for it to do so, if it took place.

I do hope this is not indicative of the OAIC's management of this FOI going forward, as it looks rather suspect (and I am aware some existing criticism of the OAIC with its FOI management, which will be expanded on in the forthcoming ANAO report).

I'd prefer it if we could work cooperatively on this matter of public importance, especially since there is considerable concern in the veterans community regarding what it sees as a deeply deceptive piece of spin regarding claimed "consultation" on the "public interest" disclosure mechanisms that are part of this Bill.

Yours sincerely,

Verity Pane

Dear Amanda Nowland,

In my response of 21 March 2017, I wrote:
In that response (second paragraph) I also asked the OAIC to:
"If the OAIC seeks to consult with other parties, it is requested that the OAIC explicitly give notice of its intent to do so, at the time it makes that decision (not sit on it until the statutory period expires), so that transparent and accountable management of this FOI is provided."

It was therefore disappointing to receive advice, second hand, not from the OAIC but the Commonwealth Ombudsman - in an aside - that the OAIC and the Commonwealth Ombudsman have been colluding unannounced until now, in relation to this FOI made to the OAIC.

It is evident that such an arrangement has been taking place for some time, given Jim Robertson of the Commonwealth Ombudsman disclosure here on the 21st March, on Right to Know (https://www.righttoknow.org.au/request/c... ):
"In the meantime, we are coordinating with the OAIC to assist with their response to a similar application from yourself." [how a seperate Commonwealth agency assists another seperate Commonwealth agency locate and report OAIC records within the scope of the FOI request, when only the OAIC has the access to its own records, is curious - unless of course the intent is to unethically collude and spin a joint response that has little to do with the objects and aims of the FOI Act, and more to do with political games]

***

Your response made no attempt to address this (the failure to advise when third party consultations took place, as requested, not whether it was legal or not), and instead of giving an apology for this failure to advise, went on a pointless tangent not the subject of the correspondence between myself and the OAIC, which makes no mention of whether the OAIC had the power or not to consult other parties (and is is willfully misleading of the OAIC to suggest so).

It is a waste of both your time and mine answering questions no-one asked, and smacks of pointless spin.

If you have reason as to why the OAIC hid that such third party consultations where taking place, I'm interested to hear that, when a request was made for such disclosure to be provided much earlier, but it seems you wish to ignore the OAIC's lack of ethics here (not surprising, but somewhat disappointing).

I already have FOI requests in with DVA and the Minister's Office, for records that they hold that relate to this matter (which rather makes your actions here ridiculous duplication). What DVA and the Minister's Office can't do, whether you transfer part of this FOI or not, is produce OAIC records (unless DVA holds copies of them, but it is not best practice to search the copies, rather the originals of agency records held by the issuing agency).

Again, this seems more like a unethical gaming of this FOI by the OAIC, than a genuine attempt to deal with it honestly.

As predicted, the OAIC seems to be putting more effort into subverting this FOI, than providing transparency and accountability, which is extremely disappointing - especially from an agency supposed to be shown it ethical leadership on FOI.

Yours sincerely,

Verity Pane

Dear Amanda Nowland,

Yet again, the OAIC have provided a FOI decision, yet not attached any schedule of documents or any of the documents released in part or full (the second time this has occurred with OAIC FOI requests). This is a breach of the FOI Act, in both letter and objects, and is very disappointing for an agency supposed to be showing best practice and ethical leadership on Freedom of Information.

It is not acceptable to treat the FOI deadline date as just for the decision - it is for both documents and decision (not release of the documents whenever you feel like it). The OAIC is absolutely making a mockery of the law here.

Yours sincerely,

Verity Pane

Dear Office of the Australian Information Commissioner,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Office of the Australian Information Commissioner's handling of my FOI request 'Waiver of Privacy Act Personal Information Disclosure Certificate - Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016 -'.

The OAIC has failed to met the regulatory deadline for submission of documents
It has failed to provide sufficient evidence to back up exemption claims (particularly on s 47E(d) which has a higher bar than that made out in the decision).
In short, it's a unlawful dodge, not done in good faith

Furthermore, with the withdrawal of the relevant Public Interest Disclosure Certificates part of the Bill, it makes claims of sensitivity particularly misleading (it's now of academic interest, but not much else).

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/w...

Yours faithfully,

Verity Pane

Dear Office of the Australian Information Commissioner,

Please pass this on to the person who conducts Freedom of Information reviews. Further to my internal review request of 4th April 2017, I wish to add this addendum, specifically adding further information with regards to the unethical conditional exemption claims made on documents 29,30,35,37,39,40,42,45 (as specified in the schedule) in either full or in part, on claimed s.47E(d) grounds.

s 47E(d) seems to being increasingly abused by the OAIC on very spurious and flimsy grounds, that do not satisfy the OAIC's own WoG FOI Guidelines. In order for this exemption to be claimed, there must be reasonable grounds to show release would have a notable adverse effect, the predicted effect needs to be reasonably expected to occur and there must be more than merely an assumption or allegation that damage may occur if the document were to be released.

If the OAIC had previously released documents of a similar nature before, with no adverse outcome, it is entirely fraudulent for such claims to be made on future release decisions of like for like documents and records.

Notably the OAIC received an FOI from me on an almost identical topic - that being consultations undertaken with the OAIC by the ABS in the privacy implications of the changes to the last Census (specifically the greatly expanded linkage of census data with non-census data, to developed more detailed micro level data sets that considerably infringe privacy, and would otherwise not be legal under the Privacy Act expect for a very loose and questionable stretching of the Census Act). That FOI was also made through Right To Know ( https://www.righttoknow.org.au/request/r... ) - FOIREQ16/00046.

In that FOI, documents were released in full by the OAIC, of clearly identical nature, to ones now being fraudulently claimed as satisfying a s 47E(d) conditional exemption.

Also of note, the only document in FOIREQ16/00046 that a s 47E(d) exemption was sought, which was not challenged, clearly articulated reasonable grounds (that being exposure of IT system sensitive information of the ABS). In contrast, the claimed grounds in this FOIREQ17-00012 decision are vague citing that releasing opinions of parties involved would hurt and chill future opinion sharing (yet that argument effectively has no limits - and zero qualitative risk assessment) and ignores that the OAIC (and the Federal Government at large) has released thousands of pages of opinions of a similar nature from similar processes of input gathering, including specifically in FOIREQ16/00046 .

Given the OAIC has continually promoted via press release the benefits of open government, which includes sharing opinions of various government agencies in formulating and fixing policy and legislation (and indeed, takes place as a matter of routine in Senate Enquires and Estimates hearings, and departmental community forums and like activities), it's highly hypocritical to say transparency in such processes are contrary to the effective and efficient operations of government agencies (and the taxpayers are entitled to have some transparency here, given the Executive ultimately must account to the public).

If the release of such information encourages agencies and public servants to improve their analysis and research of the factual basis of any opinions made, because of fear of being found to have done something malicious or unethical or just plain ill-informed, this actually improves efficiency and effectiveness of government operations, not reduces it. Again, such material is routinely released already by the OAIC and others, the only real refusal basis (an unlawful one) for when this is tried on fraudulently really is that which would embarrass the agency or public servant due to intentional or negligent wrong doing, which again is not a valid ground under the Guidelines.

Yours sincerely,

Verity Pane

Dear Kenneth Richards,

I seek IC Review of your decision, with the view to seeking review.

Yours sincerely,

Verity Pane