For Official Use Only
FOI Reference: C18/1260
Good afternoon ‘Fliccy’
Thank you for your email of 6 July 2018 (attached) seeking an internal review of the Commission’s decision of 7 June 2018.
The Commission as with most Commonwealth agencies, holds a schedule of delegations and authorisations, signed by the Commissioner, delegating powers to make decisions, as required by section 23 of the Freedom of Information Act 1982 (FOI Act).
In accordance with those delegations and the process for appointing a decision maker to make a fresh decision on your application for internal review, an internal review decision would normally be undertaken by the Deputy Commissioner who is a Senior Executive Service (SES) Band 3 Officer. Further, an officer at the same level as the original decision maker could make a decision on your internal review application. However, there are only a limited number of SES Officers in the Commission who hold the delegation to make a decision on your review application.
The Deputy Commissioner was involved in discussions about your original FOI request and decision, and has already formed certain views about your request. These views are known to the other (subordinate) SES employees who could consider your application for internal review. Consequently, an apprehension of bias may exist with respect to any SES Officer who decides or considers your application for internal review. Similarly, although the Commissioner could generally consider a request for internal review himself, the subject matter of this request may cause an apprehension of bias on his part. It seems likely that that the available decision makers, including the Commissioner, would need to recuse themselves from considering your request for internal review to avoid any apprehension of bias.
As the FOI Coordinator, I have discussed both your original FOI request and decision, and also your internal review application with the Deputy Commissioner, and other SES Officers in the Commission. As such, it has been identified that as any relevant SES Officers who hold a delegation to make a high level internal review decision, would have an apprehension of bias, if they were to make a decision on your internal review.
In accordance with 54D [deemed affirmation of original decision] of the FOI Act, an agency is required to make a decision on internal review, within 30 days of the day the application for internal review was received by the agency.
As there are no suitable decision makers free from any apprehension of bias, it is unlikely that a decision will be made within 30 days of your application for review. Consequently, a deemed affirmation of the decision on your original request will arise. The purpose of notifying you of this is to allow you to expedite this matter by seeking an external review instead.
The Commission is of the view that in order to avoid any apprehended bias, the original decision be affirmed. This means that your review can then progress to external review through the Office of the Information Commissioner (OAIC). This process could occur after 4 August 2018, being the date in which your internal review decision falls due.
Expedite to external review
However, if you wish to expedite this matter, you may wish to consider lodging an application for external review of your FOI decision with the (OAIC) who may conduct an independent review of your decision.
Part VII of the FOI Act provides that an applicant may proceed to the OAIC for an external review of an Agency’s decision. Further information on the process for lodging an Information Commissioner (IC) Review is available at https://www.oaic.gov.au/freedom-of-information/foi-review-process
The FOI Act also provides that you may lodge an external review within 60 days of receiving your FOI access refusal decision. In addition, if you find that you would like further time to lodge an application for IC Review, section 54T of the FOI Act also provides that the Information Commissioner may allow additional time for you to make an IC review if further time is required.
In the interests of allowing you an opportunity for a fair and reasonable decision, free from any apprehended bias, please advise if you wish to lodge an application for review with the OAIC?
Alternatively, if we do not hear from you by 4th August 2018, being the date in which your decision falls due, we will assume that you will proceed to the OAIC for review.
I note that you have provided comments in your application for internal review, regarding communications received by the APSC’s General Counsel.
Please note that the role of General Counsel is not the same role as that of the FOI Coordinator and these roles are undertaken by different staff within the APSC. The role of FOI Coordinator and or FOI Officer, does not require that the occupant hold a law degree. Currently, and for the purposes of correspondence in relation to your original FOI decision, the holder of this position does not hold a law degree, and is not required to do so. Where you have noted that the APSC’s General Counsel has issued either decisions or correspondence relevant to your FOI request or decision, these decisions or correspondence would have been written or sent by the FOI Coordinator, unless it is expressly stated to have been decided, sent by or from, the General Counsel or acting General Counsel.
Legislation
If you require further information on the operation of the FOI Act, a copy of the legislation is available from https://www.legislation.gov.au/Details/C2018C00263
Regards
FOI Coordinator
Legal Services
Australian Public Service Commission
Level 4, B Block, Treasury Building
Parkes Place West, Parkes ACT 2600
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