Our reference: FOIREQ22/00045
By ema
il: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Your Freedom of Information request – FOIREQ22/00045
Dear Cameron L
I refer to your request for access to documents made under the
Freedom of Information Act
1982 (Cth) (the FOI Act) received on 16 February 2022.
Your request was made on the following terms:
‘I refer to my FOI request made of the Department of the Prime Minister and Cabinet (PM&C)
here:https://aus01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.righttoknow.
org.au%2Frequest%2Fcontraventions_of_the_foi_act_by&data=04%7C01%7Clegal%40oai
c.gov.au%7Cde32543f466b4d7bdf7e08d9f0fb58af%7Cea4cdebd454f4218919b7adc32bf1549%
7C0%7C0%7C637805785648864607%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAi
LCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=APsmo0Vf%2F81mT
83Vhsan4mC8MNP0bBXNxvBh3j1FfTY%3D&reserved=0
PM&C has not made a decision on that request and has presumably, therefore, contravened
s.15(5)(b) of the FOI Act.
I’ve been advised, by a staff member at PM&C, that PM&C’s senior management group has
implemented a practice whereby PM&C decision-makers are not allowed to make decisions on
applications made under the FOI Act unless and until the Prime Minister’s Office agrees with the
decision proposed to be made, and agrees that the decision should be made.
In respect of my FOI application, a staff member at PM&C advised me that they’re unable to
make a decision on my request unless and until they’re directed to by the Prime Minister’s Office
- something which has apparently yet to occur.
I’ve lodged a complaint and a request for IC review (with the OAIC) in respect of PM&C’s access
refusal decision and contravention of the FOI Act but I’m aware that as a result of systemc
underfunding of the Office of the Australian Information Commissioner (OAIC) by the
Government (which was the course of action pursued by this Government after it failed in its
efforts to abolish the OAIC) IC review decisions and investigation of FOI complaints likely take in
excess of 2 years to finalise.
That being so, under the FOI Act, I seek access to a copy of any document held by the OAIC
(rather than PM&C) that fal s within the terms of my FOI request made of PM&C here:
https://aus01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.righttoknow.org.a
u%2Frequest%2Fcontraventions_of_the_foi_act_by&data=04%7C01%7Clegal%40oaic.gov.
au%7Cde32543f466b4d7bdf7e08d9f0fb58af%7Cea4cdebd454f4218919b7adc32bf1549%7C0%7
C0%7C637805785648864607%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjo
iV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=APsmo0Vf%2F81mT83Vhs
an4mC8MNP0bBXNxvBh3j1FfTY%3D&reserved=0’
[The terms of the FOI request you made to PM&C is as follows:]
‘Dear Department of the Prime Minister and Cabinet,
I refer to documents released by the Office of the Australian Information Commissioner (OAIC)
finding that the Department of the Prime Minister and Cabinet acted il egally by reference to its
obligations under the FOi Act as available here: https://www.righttoknow.org.au/request/8 ...
T +61 2 9284
9749
GPO Box 5218
1300 363 992
F +61 2 9284
Sydney NSW
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx 9666
2001
ABN 85 249 230 937
(https://www.righttoknow.org.au/request/8096/response/23753/attach/10/FOIREQ21%20002
63%20Documents%20for%20relea se.pdf)
I note the recommendations of the Acting Freedom of Information Commissioner flowing from
the illegalities engaged in by the Department and stated as follows:
"Pursuant to s 88 of the FOi Act, I make the fol owing formal recommendations to the
Department that I believe the Department ought to implement within the
timeframes specified below:
1. The Department appoint an Information Champion by 5 November 2021.
The Information Champion may be supported by an information governance
board to provide leadership, oversight and accountability necessary to
promote and operationalise the Department's compliance with the FOi Act.
2. The Department provide training to FOi Section staff and relevant Senior
Executives by 5 January 2022 about the obligations under the FOi Act to
comply with statutory processing periods.
I request that the Department advise the OAIC of the implementation of each
recommendation within the timeframes specified."
Under the FOi Act, I seek access to a copy of any document given by the Department to the OAIC
that advises the OAIC of the implementation of the above statutory recommendations as made
by the Acting Freedom of Information Commissioner in response to the il egalities engaged in by
the Department.
There is a wide public interest in whether the Prime Minister's Department and its Secretary
have complied with the statutory recommendations of the regulator or whether the
Department has thumbed its nose at those recommendations - not least because the latter
course constitutes a clear contravention of the APS Code of Conduct on the part of the Head of
the APS, Mr Phil Gaetjens.
Yours faithfully,
L Cameron’
Decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to FOI
requests.
Searches undertaken
To find the document you requested, staff of OAIC searched in OAIC’s document storage
systems including Outlook email inboxes, and the OAIC case management system
Resolve.
I have identified 1 document within the scope of your request. I have decided to grant you ful
access to this document.
Reasons for decision
Material taken into account
In making my decision, I have had regard to the fol owing:
• your freedom of information request;
• the document at issue;
• submissions received by relevant third parties;
• the FOI Act; and
2
• the Guidelines issued by the Australian Information Commissioner under s 93A of the
FOI Act.
Release of document
Because a relevant third party was consulted in the making of this decision and has objected to
the release of the document within scope of this request, I am required, under s 27A of the FOI
Act to advise them of my decision and provide them with an opportunity to seek:
• internal review of my decision, or
• review of my decision by the Information Commissioner.
The third party has 30 days from the date they are notified of my decision in which to seek
review. As a result, the document which the third party has objected from release cannot be
released to you until this time has expired, or until any internal review or appeal has been
completed and my decision to release the document is upheld or confirmed. This document is
identified in the schedule of documents attached. Please see the following page for
information about your review rights and information about the OAIC's disclosure log.
Yours sincerely
Emily Elliot
Senior Lawyer
19 April 2022
3
If you disagree with my decision
Internal review
You have the right to apply for an internal review of my decision under Part VI of the FOI Act.
An internal review will be conducted, to the extent possible, by an officer of the OAIC who was
not involved in or consulted in the making of my decision. If you wish to apply for an internal
review, you must do so in writing within 30 days. There is no application fee for internal
review.
If you wish to apply for an internal review, please mark your application for the attention of
the FOI Coordinator and state the grounds on which you consider that my decision should be
reviewed.
Applications for internal reviews can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Alternatively, you can submit your application by email to
xxx@xxxx.xxx.xx, or by fax on
02 9284 9666.
Further Review
You have the right to seek review of this decision by the Information Commissioner and the
Administrative Appeals Tribunal (AAT).
You may apply to the Information Commissioner for a review of my decision (IC review). If you
wish to apply for IC review, you must do so in writing within 60 days. Your application must
provide an address (which can be an email address or fax number) that we can send notices to,
and include a copy of this letter. A request for IC review can be made in relation to my
decision, or an internal review decision.
It is the Information Commissioner’s view that it wil usually not be in the interests of the
administration of the FOI Act to conduct an IC review of a decision, or an internal review
decision, made by the agency that the Information Commissioner heads: the OAIC. For this
reason, if you make an application for IC review of my decision, and the Information
Commissioner is satisfied that in the interests of administration of the Act it is desirable that
my decision be considered by the AAT, the Information Commissioner may decide not to
undertake an IC review.
Section 57A of the FOI Act provides that, before you can apply to the AAT for review of an FOI
decision, you must first have applied for IC review.
4
Applications for IC review can be submitted online at:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_10
Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or by email to
xxxxx@xxxx.xxx.xx, or by fax on 02 9284 9666.
Accessing your information
If you would like access to the information that we hold about you, please
contact
xxxxx@xxxx.xxx.xx. More information is available on the
Access our information page
on our website.
Disclosure log
Section 11C of the FOI Act requires agencies to publish online documents released to members
of the public within 10 days of release, except if they contain personal or business information
that would be unreasonable to publish. As the documents released to you do not contain
information that would be unreasonable to publish, they will be published on the disclosure
log within 10 days of their release.
5
Schedule of documents – Freedom of information request no. FOIREQ22/00045
Document Page
Date
Description
Decision on access
no.
no.
1
1 - 2
27 October 2021
Response to the notice on completion of a complaint Full Access
investigation in accordance
with section 86 of the Freedom of Information Act
Subject to third party
1982 (Cth) (the FOi Act)
review rights
T +61 2 9284
9749
GPO Box 5218
1300 363 992
F +61 2 9284
Sydney NSW
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx 9666
2001
ABN 85 249 230 937
T +61 2 9284
9749
GPO Box 5218
1300 363 992
F +61 2 9284
Sydney NSW
www.oaic.gov.au
xxxxxxxxx@xxxx.xxx.xx 9666
2001
ABN 85 249 230 937
Document Outline
