FOI
Revised decision made under section 55G of the Freedom of Information
Act 1982
Revised decision and reasons for decision of Jo (Position Number 62210326), Assistant
Director, Information Law Section, Legal Services & Audit Branch, Department of
Veterans’ Affairs
Applicant:
Verity Pane
Date of primary decision:
13 September 2018
FOI reference number:
FOI 23543; IR 24470
Revised decision date:
9 September 2019
Revised decision reference number: ICR 26189 (MR18/00789)
Dear Verity Pane,
Freedom of Information Request: FOI 26189
1.
The purpose of this correspondence is to advise you of a revised decision the Department of
Veterans’ Affairs (
Department) has made under section 55G of the
Freedom of Information Act 1982
(
FOI Act) in relation to FOI 24470.
2.
My decision only applies in relation to:
• the release in part of one (1) additional document identified as falling within the scope of
your request; and
• to release additional material in Document 2 that was previously considered irrelevant to the
scope of your request.
Revised Decision
3.
I have made a decision to vary the original decision made by Position Number 62210136, Legal
Services and Assurance Branch, on 15 October 2018.
4.
Instead, I have decided to release further material in Document 2 and to release in part one (1)
additional document (Document 3).
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5.
The Department has undertaken a reasonable search of its records and has identified one additional
document relevant to your request.
6.
I have made a decision to release this document in part.
7.
The Department has also reconsidered material in Document 2 that was previously removed on the
basis that it was irrelevant to the scope of your request. The Department has decided that some
material in the Executive Summary on pages 1-5 of Document 2 does fall within the scope of your
request.
8.
I have made a decision to release this additional material in Document 2 to you. The Department’s
decision regarding irrelevant material in the remainder of the document remains.
9.
The documents that I have chosen to grant access in part to are set out in
Schedule 1. As I have
decided to grant access in part, I have provided access to an edited copy of the documents, modified
by deletions in accordance with section 22(2) of the FOI Act.
Authority to make decision
10. I, Jo (Position Number 62210326), Assistant Director, Information Law Section, am an officer
authorised by the Secretary of the Department to make decisions about access to documents in the
possession of the Department, in accordance with section 23(1) of the FOI Act.
Summary
11. On 16 July 2018, you made a request for access to document in the possession of the Department.
Your request sought access to:
…I seek under FOI copy of the client satisfaction survey
(https://www.dva.gov.au/consultation-and-grants/client-satisfaction-survey ) sample
selection methodology (a survey it is claimed is carried out biannually).
According to DVA’s website the sample is allegedly chosen ‘randomly’, but previous media
reporting (https://www.news.com.au/national/calls-for-royal-commission-into-
department-of-veterans-affairs-after-client-survey-overlooks-the-young/news-
story/aea46ea1cdfabad6c437899a4c3e001d ) and previous ANAO commentary affirms is
overly weighed towards veterans over 85 years old and war widows, who will have little or
no contact with DVA’s liability and compensation areas, and wil generally have little
regular contact with the Department (their exposure mostly through using their DVA Gold
Cards at external medical services).
As the survey, as a human research activity, would have had to have been properly
formulated and cleared for use, a formal sample selection methodology as to how selection
for the survey is determined must exist.
2
Also, I would seek any documentation recording or explaining as to why the survey is only
carried out via the telephone via CATI (Computer-Assisted Telephone Interviewing)
compared to online col ection, using Survey Monkey or the other like platform (especially
given the cost benefits).
As only a very small number of documents could possibly fall within this specific scope,
assessment time would be minimal. The names of private individuals (which is not public
servants performing their duties) and external commercial organisations may be redacted
from the copy to be provided, should you wish to voluntarily devote time to that.
I seek this information to engage, with the necessary background information, in the public
debate as to the reliability and suitability of the sample selection methodology DVA uses,
given how it purports what those statistics represent (sample frame error seems to be
significant problem based on current data, given sample is overly weighted to those with
only peripheral engagement with DVA, and no engagement with DVA’s liability and
compensation functions for many years)…
12. On 13 September 2018, you were provided with a decision relating to your request which granted
access to two (2) documents in part, with irrelevant matter deleted under section 22 of the FOI Act.
13. On 13 September 2018, you requested an internal review of the above decision.
14. On 15 October 2018, the Department affirmed the original decision.
15. On 20 December 2018, the Office of the Australian Information Commissioner (
OAIC) sent the
Department a notice under s 54Z of the FOI Act advising that the OAIC had commenced a review of
the Department’s decision. It is understood that in seeking the review you requested the OAIC
investigate the searches undertaken by the Department. You also stated:
…The statement of reasons, in setting out the Internal Reviewer’s reasons is perfunctory and
opaque. Statements such as ‘I am satisfied the Department has undertaken additional
searches and have been unable to identify any further documents’ but does not state what
additional searches have been carried out in any way, nor provides any detail to support
this claim in any way (the lack of any reasoning and detail, when required, infers
inadequete or no search took place). The cut and paste from considerations listed in the
Guidelines is not evidence that additional searches were conducted and or that all relevant
documents were captured.
Similarly, the internal reviewer uses the same self referential perfunctory and opaque
conclusion as to the appropriateness of the redactions made by the original decision maker,
simply cite the decision of the original reviewer, without any actual evidence of
consideration. Simply pointing to the evaluation made by the original decision maker and
saying I agree is not the role of an Internal Reviewer, who must consider the decision de
3
novo. The role of the internal review officer is to bring a fresh, independent and impartial
mind to the review, not to simply repeat the original decision…
16. On 6 August 2019, the OAIC issued the Department with a preliminary view on this matter.
17. Following further consideration of this matter, including review of one document previously
considered to be outside of the scope of your request, the Department has decided to release
additional material in Document 2 and Document 3 in part. For this reason, the Department has
prepared this revised decision under section 55G of the FOI Act.
18. The Department will provide the OAIC with a copy of this revised decision.
Material taken into account
19. In accordance with section 26(1)(a) of the FOI Act, my findings on any material question of fact, the
material on which those findings were based and the reasons for my decision to grant partial access
to the documents fol ows.
20. I have taken the following material into account in making my decision:
the terms of your request;
the terms of your request for an internal review;
the terms of your request for external review through the OAIC;
the types of documents that are in the possession of the Department;
the content of the documents that fall within the scope of your request;
Sections 3, 11 and 11A of the FOI Act which give the Australian community a legally
enforceable right to obtain access to information held by the Government of the
Commonwealth. I also considered the following provisions of the FOI Act relevant to my
decision:
- Section 15 Request for Access
- Section 22 Access to edited copies with exempt or irrelevant material deleted; and
the Guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (
FOI Guidelines).
21. A full extract of all FOI Act provisions used to make my decision are provided in
Schedule 2.
4
Reasons for decision
22. I have decided to
grant access to two (2) documents within the scope of your request, with irrelevant
matter deleted.
Delete exempt or irrelevant material from documents and provide access to edited copies
(section 22)
23. The Department may refuse access to a document on the ground that it is exempt. If so, the
Department must consider whether it would be reasonably practicable to prepare an edited copy of
the document for release, that is, a copy with relevant deletions made under section 22 of the
FOI Act. The Department is under the same obligation to consider preparing an edited copy of a
document by removing information that would reasonably be regarded as irrelevant to the request.
24. As explained above, some of the documents subject to your request contain irrelevant information;
specifically information that does not relate to the sample selection methodology.
25. On this basis, I have prepared the documents for release by removing that irrelevant material in
accordance with section 22 of the FOI Act. The material that has been edited for release is marked
within the documents as well as at
Schedule 1.
Access to documents
26. The documents released to you in accordance with the FOI Act are enclosed.
Information Publication Scheme
27. The Information Publication Scheme requires the Department to publish information released in
response to individual requests made under the FOI Act, except in specified circumstances. I am of
the view that details of your request should be made available on the Department’s disclosure log.
As such details of your request wil be published by the Department on its disclosure log, which can
be accessed a
t http://www.dva.gov.au/about-dva/freedom-information/foi-disclosure-log . Please
note that the Department does not publish details of FOI applicants, it is only details of the FOI
request and the documents released in response to the request.
Application for Information Commissioner Review – request to withdraw application
28. I consider the Department to have satisfactory resolved the issues you have identified. As such, I
kindly ask you to consider withdrawing your application for review with the OAIC.
Your rights of review
29. If you are dissatisfied with my decision, you may advise the OAIC that you do not wish to withdraw
your application for IC Review.
5
30. You can contact the OAIC in one of the following ways:
Online:
www.oaic.gov.au
Post:
Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile:
(02) 9284 9666
Email:
xxxxxxxxx@xxxx.xxx.xx
In person:
Level 3, 175 Pitt Street, Sydney NSW 2000
31. More information about your review rights under the FOI Act is available in Fact Sheet 12 published
by the Office of the Australian Information Commissioner:
http://oaic.gov.au/freedom-of-
information/foi-resources/freedom-of-information-fact-sheets/foi-factsheet-12-your-review-rights
Contact us
32. If you wish to discuss this decision, please do not hesitate to contact the Information Law Section
using the following details:
Post:
Legal Services and Audit Branch, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile:
(02) 6289 6337
Email:
xxxxxxxxxxx.xxx@xxx.xxx.xx
Yours sincerely,
Jo (Position Number 62210326)
Assistant Director
Information Law Section | Legal Services and Audit Branch
Integrity, Assurance and Communications Division
9 September 2019
6
FOI
Schedule 1
Schedule of documents
Applicant:
Ms Verity Pane
Decision date:
9 September 2019
FOI reference number:
FOI 26189
Doc
Date of
Document description
Pages Decision Exemption
No. document
provision
2 3 May 2018
Orima Research Ltd Proposal
42 Access in
s 22
part
(Irrelevant
matter)
3 12 July 2016
Secretary Brief
12 Access in
s 22
part
(Irrelevant
matter)
7
FOI
Schedule 2
Schedule of relevant provisions in the FOI Act
3
Objects—general
(1)
The objects of this Act are to give the Australian community access to information held by
the Government of the Commonwealth or the Government of Norfolk Island, by:
(a)
requiring agencies to publish the information; and
(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy
by contributing towards the fol owing:
(a)
increasing public participation in Government processes, with a view to promoting
better informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held
by the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.
11
Right of access
(1)
Subject to this Act, every person has a legally enforceable right to obtain access in
accordance with this Act to:
(a)
a document of an agency, other than an exempt document; or
(b)
an official document of a Minister, other than an exempt document.
(2)
Subject to this Act, a person’s right of access is not affected by:
(a)
any reasons the person gives for seeking access; or
(b)
the agency’s or Minister’s belief as to what are his or her reasons for seeking
access.
11A Access to documents on request
Scope
(1)
This section applies if:
(a)
a request is made by a person, in accordance with subsection 15(2), to an agency or
Minister for access to:
(i)
a document of the agency; or
(ii)
an official document of the Minister; and
(b)
any charge that, under the regulations, is required to be paid before access is given
has been paid.
(2)
This section applies subject to this Act.
Note:
Other provisions of this Act are relevant to decisions about access to documents, for example the fol owing:
(a)
section 12 (documents otherwise available);
(b)
section 13 (documents in national institutions);
(c)
section 15A (personnel records);
(d)
section 22 (access to edited copies with exempt or irrelevant matter deleted).
8
Mandatory access—general rule
(3)
The agency or Minister must give the person access to the document in accordance with
this Act, subject to this section.
Exemptions and conditional exemptions
(4)
The agency or Minister is not required by this Act to give the person access to the
document at a particular time if, at that time, the document is an exempt document.
Note:
Access may be given to an exempt document apart from under this Act, whether or not in response to a request
(see section 3A (objects—information or documents otherwise accessible)).
(5)
The agency or Minister must give the person access to the document if it is conditionally
exempt at a particular time unless (in the circumstances) access to the document at that
time would, on balance, be contrary to the public interest.
Note 1: Division 3 of Part IV provides for when a document is conditional y exempt.
Note 2: A conditional y exempt document is an exempt document if access to the document would, on balance, be
contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.
(6)
Despite subsection (5), the agency or Minister is not required to give access to the
document at a particular time if, at that time, the document is both:
(a)
a conditional y exempt document; and
(b)
an exempt document:
(i)
under Division 2 of Part IV (exemptions); or
(ii)
within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).
15
Requests for access (as related to the requirements for requests)
Persons may request access
(1) Subject to section 15A, a person who wishes to obtain access to a document of an agency
or an official document of a Minister may request access to the document.
Requirements for request
(2)
The request must:
(a)
be in writing; and
(aa) state that the request is an application for the purposes of this Act; and
(b)
provide such information concerning the document as is reasonably necessary to
enable a responsible officer of the agency, or the Minister, to identify it; and
(c)
give details of how notices under this Act may be sent to the applicant (for
example, by providing an electronic address to which notices may be sent by
electronic communication).
(2A) The request must be sent to the agency or Minister. The request may be sent in any of the
following ways:
(a)
delivery to an officer of the agency, or a member of the staff of the Minister, at the
address of any central or regional office of the agency or Minister specified in a
current telephone directory;
(b)
postage by pre-paid post to an address mentioned in paragraph (a);
(c)
sending by electronic communication to an electronic address specified by the
agency or Minister.
22
Access to edited copies with exempt or irrelevant matter deleted
Scope
(1)
This section applies if:
(a)
an agency or Minister decides:
9
(i)
to refuse to give access to an exempt document; or
(ii)
that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an edited copy) of the
document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section 11A
(access to documents on request); and
(ii)
the edited copy would not disclose any information that would reasonably
be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the edited copy,
having regard to:
(i)
the nature and extent of the modification; and
(ii)
the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the applicant) that
the applicant would decline access to the edited copy.
Access to edited copy
(2)
The agency or Minister must:
(a)
prepare the edited copy as mentioned in paragraph (1)(b); and
(b)
give the applicant access to the edited copy.
Notice to applicant
(3)
The agency or Minister must give the applicant notice in writing:
(a)
that the edited copy has been prepared; and
(b)
of the grounds for the deletions; and
(c)
if any matter deleted is exempt matter—that the matter deleted is exempt matter
because of a specified provision of this Act.
(4)
Section 26 (reasons for decision) does not apply to the decision to refuse access to the
whole document unless the applicant requests the agency or Minister to give the applicant
a notice in writing in accordance with that section.
23
Decisions to be made by authorised persons
(1)
Subject to subsection (2), a decision in respect of a request made to an agency may be
made, on behalf of the agency, by the responsible Minister or the principal officer of the
agency or, subject to the regulations, by an officer of the agency acting within the scope of
authority exercisable by him or her in accordance with arrangements approved by the
responsible Minister or the principal officer of the agency.
(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or body
that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or
body by the principal officer of that court, tribunal, authority or body or, subject to the
regulations, by an officer of that court, tribunal, authority or body acting within the scope
of authority exercisable by him or her in accordance with arrangements approved by the
principal officer of that court, tribunal, authority or body.
26
Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document,
the decision-maker shall cause the applicant to be given notice in writing of the decision,
and the notice shall:
(a)
state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
(aa)
in the case of a decision to refuse to give access to a conditionally exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
10
Note:
Access must general y be given to a conditional y exempt document unless it would be contrary to the public
interest (see section 11A).
(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and
(c)
give to the applicant appropriate information concerning:
(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be
made.
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature
that its inclusion in a document of an agency would cause that document to be an exempt
document.
(see section 11A).
11
Document Outline
