Marius
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our reference: LEX 679
Dear Marius
Freedom of Information request
1. I am writing about your request dated
16 October 2023 for access to documents
under the
Freedom of Information Act 1982 (FOI Act) held by the Australian Public
Service Commission (Commission).
2. I am an authorised officer under subsection 23(1) of the FOI Act to make decisions in
relation to Freedom of Information (FOI) requests.
Your request
3. You requested access to documents in the following terms:
I am making this request for access to documents that may be in the control of the
Office of the APSC. If the documents are not in the control of the APSC, do not
transfer this request to the agency that officials in the APSC believe has the
documents. If the requested documents are not in the control of the APSC, please
simply refuse access to the documents under section 24A of the FOI Act.
As to my right to elect whether I would like the Office of the Commonwealth
Ombudsman to deal with this request and not transfer it to another agency, I refer you
to the Federal Court of Australia’s judgment in Bienstein v Attorney-General [2007]
FCA 1174, [38]. The law on the matter is settled and clear.
Under the Freedom of Information Act 1982 (Cth), I request access to the role
evaluation record, prepared between 1 January 2017 and 31 December 2020, that
shows that the SES Band 1 classified National Judicial Registrar & District Registrar
role in the Queensland District Registry of the Federal Court was, in the light of the
work value of the group of duties described in the work level standards and a proper
job analysis, lawfully reclassified and allocated an Executive Level 2 classification
for the purposes of rule 9 of the Public Service Classification Rules 2000 (Cth).
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My decision
4. As I advised you on
13 November 2023, I decided that a practical refusal reason
existed for your FOI request under section 24AA of the FOI Act and initiated a
‘request consultation process’. In that letter I requested you withdraw your request,
revise it or tell us you do not wish to revise it.
5. You wrote to me on
13 November 2023, where you provided submissions and did not
revise the scope of your request.
6. In your response you made a submission that:
Having considered your letter, I am not inclined to and, thus, will not revise my FOI
request.
The reasons you have provided are incoherent and irrelevant. Also, the time estimate
you have provided to process the request is beyond excessive. The estimate is orders
of magnitude beyond what would reasonably be required to handle such a
straightforward request.
Paragraphs 13 and 14 of your decision suggest to me that you have not read my FOI
request well enough.
Paragraph 11 is just strange. Why would the contents of a role review document, that
would contain no personal information (it’s a review of a role, which is independent
of any person who holds the role), need to be redacted? It's an impersonal document
that, in the ordinary course, would be made available to any member of the public.
Also, why would there be such a “volume of material” in respect of a role review for
a single role that you would need 78 hours to process the request?
Of what relevance is paragraph 12 to my FOI request? The FOI process is not
suspended because an agency has a priority matter to deal with. If this were the case,
then, by way of example, Services Australia would have suspended all FOI processing
during the Robodebt Royal Commission. That did not happen. There is no basis in
law for what you have noted in paragraph 12 of your decision.
There’s nothing difficult about the request. I note that an article published in The
Australian on 10 February 2022 provides the following in relation to the role review
of the SES Band 1 classified National Judicial Registrar & District Registrar role in
Queensland:
Ms McMullen’s investigation concluded that “a role review process … had resulted
in certain positions being found suitable for either (classification)” (i.e. Legal 2 or
SESB1).
(See: https://www.fedcourt.gov.au/__data/assets/pdf_file/0010/99370/PA2925-0656-
4.-Email-to-Ms-Vine-Camp-dated-3-May-2022.pdf)
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Ms McMullen was provided with the role review document/s and made a material
decision based on the role review document/s. It’s just a matter of providing the role
review document (or documents), isn’t it? Why would there be a practical refusal
ground in respect of a request for documents in relation to a single role review
process?
You are clearly aware that there have been decisions made in respect of the same
document/s, which means the documents would also be close to hand. And if there
have been decisions made in respect of the same document/s by the APSC, what's this
about needing 78 hours to process the request?
All a bit odd.
7. I am writing to you now to advise that following a request consultation process, and
taking into account your submission, I am satisfied that a practical refusal reason still
exists. I am therefore refusing your request under paragraph 24(1)(b) of the FOI Act.
8. In making this decision I have had regard to:
the terms of your request.
the terms of your submissions in response to the request consultation process.
the FOI Act; and
the FOI Guidelines issued by the Australian Information Commissioner.
9. I have not had regard to:
any reasons that you give for requesting access; or
the Commission’s belief as to what your reasons are for requesting access; or
any maximum amount, specified in the regulations, payable as a charge for
processing a request of that kind.
Reasons
10. I am of the view that processing your request would be a substantial diversion of the
Commission's resources because:
collecting and reviewing the volume of material involved would be significant;
identifying, locating and/ or collating documents would particularly be onerous as
it is estimated that documents from multiple sources will be found that may be
captured by the form the request takes; and
many of these documents relate to previous FOI requests on related or similar
matters.
11. I am also of the view that processing your request would be an unreasonable diversion
of the Commission's resources because:
you have stated in your request that you do not wish for the request to be
transferred to the Federal Court of Australia. Given the nature of your request,
relating to recruitment in the Federal Court, this is the agency most likely to hold
the records you are seeking in your request, not the Commission or the Office of
the Commonwealth Ombudsman;
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the Commission is a portfolio agency, with limited staffing resources available.
For example, it does not have the resources of Services Australia, referred to in
your submissions, available to it for the processing of FOI requests;
the Commission does not have, nor has ever previously required, any permanent
dedicated FOI staffing resources as it has historically received a low number of
FOI requests that are capable of being managed within the existing resources;
at present the Commission has received a higher than usual number of FOI Act
requests; and applications for internal review. Many of the requests relate to
similar or related matters and I have taken this into account in making my decision
(subsection 24(2) FOI Act);
the Commission has limited capacity to obtain temporary resourcing in
considering the impact of processing your request; and
the Commission is currently working on a number of priority matters related to its
functions and the Government's public service reform agenda, as recently
announced by the Minister for the Public Service the Hon Senator Katy Gallagher.
Processing your request would unreasonably divert resources that would
otherwise be dedicated to performing the essential operations of the agency.
12. The amount of time estimated to process your request remains the same as the
consultation notice, as you have declined to revise the request.
Review rights
13. You are entitled to seek review of this decision. Your review rights are set out at
Attachment A.
Contacts
14. If you require clarification on matters in this letter please contact the Commission’s
FOI Officer by email at xxx@xxxx.xxx.xx.
Yours sincerely
Melanie McIntyre
Authorised FOI decision maker
17 November 2023
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ATTACHMENT A
Rights of Review
Asking for a full explanation of a Freedom of Information decision If you are dissatisfied with this decision, you may seek review. Before you seek review of a
Freedom of Information (FOI) decision, you may contact us to discuss your request and we
will explain the decision to you.
Seeking review of a Freedom of Information decision If you still believe a decision is incorrect, the
Freedom of Information Act 1982 (the FOI Act)
may give you the right to apply for a review of the decision. Under sections 54 and 54L of the
FOI Act, you can apply for a review of an FOI decision by seeking:
1. an internal review by an different officer of the Australian Public Service Commission;
and/or
2. external review by the Australian Information Commissioner.
There are no fees applied to either review option.
Applying for a review by an Internal Review Officer If you apply for internal review, a different decision maker to the agency authorised officer
who made the original decision will carry out the review. The Internal Review Officer will
consider all aspects of the original decision and decide whether it should change. An
application for internal review must be made in writing within 30 days of receiving this letter
to:
Email: xxx@xxxx.xxx.xx
Post: The FOI Officer
Australian Public Service Commission
B Block, Treasury Building
GPO Box 3176
Parkes Place West
PARKES ACT 2600
You do not need to fill in a form. However, it is a good idea to set out any relevant
submissions you would like the Internal Review Officer to further consider, and your reasons
for disagreeing with the decision.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original FOI decision or the internal review decision, you can ask
the Australian Information Commissioner to review the decision. You have 60 days to apply
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in writing for a review by the Office of the Australian Information Commissioner (OAIC)
from the date you received this letter or any subsequent internal review decision.
You can
lodge your application:
Online:
www.oaic.gov.au Post: Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email: xxxxxxxxx@xxxx.xxx.xx
The OAIC encourage applicants to apply online. Where possible, to assist the OAIC you
should include your contact information, a copy of the related FOI decision and provide
details of your reasons for objecting to the decision.
Complaints to the Information Commissioner and Commonwealth Ombudsman
Information Commissioner You may complain to the Information Commissioner concerning action taken by an agency
in the exercise of powers or the performance of functions under the FOI Act. There is no fee
for making a complaint. A complaint to the Information Commissioner must be made in
writing. The Information Commissioner's contact details are:
Telephone: 1300 363 992
Website: www.oaic.gov.au
Commonwealth Ombudsman You may complain to the Ombudsman concerning action taken by an agency in the exercise
of powers or the performance of functions under the FOI Act. There is no fee for making a
complaint. A complaint to the Ombudsman may be made in person, by telephone or in
writing. The Ombudsman's contact details are:
Phone: 1300 362 072
Website: www.ombudsman.gov.au
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