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Access to documents containing details that should have been made available in reports prepared under s 76 of the PID Act

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Dear Commonwealth Ombudsman,

BACKGROUND

On 6 March 2022 I made a request to the Commonwealth Ombudsman. The request can be seen here:

https://www.righttoknow.org.au/request/r...

I made the request because I had noticed that the Commonwealth Ombudsman had contravened paragraph 76(2)(a) of the Public Interest Disclosure Act 2013. That paragraph requires the Ombudsman to prepare a report that must include:

(a) in relation to each agency, statements of the following:

(i) the number of public interest disclosures received by authorised officers of the agency during the financial year;
(ii) the kinds of disclosable conduct to which those disclosures relate;
(iii) the number of disclosure investigations that the principal officer of the agency conducted during the financial year;
(iv) the actions that the principal officer of the agency has taken during the financial year in response to recommendations in reports relating to those disclosure investigations …

I noticed that the Commonwealth Ombudsman had failed to what is required by the PID Act. Instead of preparing a report that had, in relation to EACH agency, statements of the things set out in (i) - (iv), the Ombudsman had prepared a report in which the things set out in (i)-(iv) were reported in relation to some agencies, and not for EACH agency.

I requested copies of the reports that the Ombudsman should have prepared in relation to each agency for the 2019-2020 and 2020-2021 financial years. On 20 May 2022 Sine Dellit, a senior legal officer in the Office of the Commonwealth Ombudsman, provided a decision in relation to my request. In that decision Ms Dellit refused access to the documents on the grounds that the reports do not exist/cannot be located. Ms Dellit's decision is set out here:

https://www.righttoknow.org.au/request/r...

The documents do not exist/could not be found because the Ombudsman did not prepare the reports according to the terms of paragraph 76(2)(a) of the Public Interest Disclosure Act 2013.

FOI REQUEST

Under subsection 76(3) of the Public Interest Disclosure Act 2013, the principal officer of an agency is required to give the Ombudsman such information and assistance as the Ombudsman reasonably requires in relation to the preparation of a report under section 76. That includes providing the details set out in paragraph 76(2)(a) of the Public Interest Disclosure Act 2013. The Australian Public Service Commissioner would have provided the details set out in paragraph 76(2)(a) to the Commonwealth Ombudsman so that the Ombudsman could prepare a report according to the terms of paragraph 76(2)(a) of the PID Act.

Since the Ombudsman has failed to do that which the Ombudsman was required to do under that paragraph in respect of the reports prepared for the 2019-2020 and 2020-2021 financial years, the Ombudsman should, through the FOI process, provide access to documents containing that information.

Under the FOI Act I request access to any and all documents HELD BY THE OFFICE OF THE COMMONWEALTH OMBUDSMAN which set out the following:

in relation to the Australian Public Service Commission (APSC), statements of the following for the 2019-2020 and 2020-2021 financial years:

(i) the number of public interest disclosures received by authorised officers of the APSC during the financial year;
(ii) the kinds of disclosable conduct to which those disclosures relate;
(iii) the number of disclosure investigations that the principal officer (or his delegate/s) of the agency conducted during the financial year;
(iv) the actions that the principal officer of the agency has taken during the financial year in response to recommendations in reports relating to those disclosure investigations …

Do not transfer this request to the Australian Public Service Commission. You are aware of the Federal Court's judgment in Bienstein v Attorney-General [2007] FCA 1174. You must abide by the terms of that judgment and the elucidation of the terms of section 16 of the FOI Act that Justice Gray provided in that judgment.

To the extent that a document can be prepared according to the terms of s 17 of the FOI Act, please make sure that you abide by the terms of that section.

Yours faithfully,

Marek

Dear Commonwealth Ombudsman,

It has been more than 14 days since I sent my FOI request. Would you please acknowledge receipt of the FOI request, according to the terms of the FOI Act? I should not have to constantly draw your attention to your duties under the law.

Yours faithfully,

Marek

Dear Commonwealth Ombudsman,

Still ignoring me I see.

Paragraph 15(5)(a) of the Freedom of Information Act provides:

On receiving a request, the agency or Minister MUST as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified that the request has been received.

So do the folks at the Office of the Commonwealth Ombudsman think they are above the law?

Yours faithfully,

Marek

Dear Commonwealth Ombudsman,

Still no acknowledgement of receipt of my FOI request?

Yours faithfully,

Marek

Dear Commonwealth Ombudsman,

It has been more than 14 days since I sent my FOI request. Would you please acknowledge receipt of the FOI request, according to the terms of the FOI Act?

Yours faithfully,

Marek

Dear Commonwealth Ombudsman,

Paragraph 15(5)(a) of the Freedom of Information Act provides:

On receiving a request, the agency or Minister MUST as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified that the request has been received.

I sent the Office of the Commonwealth Ombudsman my request on 23 May 2022. I have not received a notification confirming receipt of my FOI request. I have also sent four reminders to the Office of the Commonwealth Ombudsman that staff members have failed to confirm receipt. The emails are sent to the Ombudsman's generic "ombudsman[at symbol]ombudsman.gov.au" email address. When will the staff members in the Office of the Commonwealth Ombudsman confirm receipt?

Yours faithfully,

Marek

Sine Dellit, Commonwealth Ombudsman

2 Attachments

OFFICIAL

 

Dear Marek,

 

I attach the decision for your FOI request FOI-2022-10056.

 

Yours sincerely,

 

Sine Dellit

 

Senior Legal Officer | Legal Team

Commonwealth Ombudsman

Ph: 1300 362 072 | Fax: 02 6276 0123

Email: [1][CO request email]

 

[2][IMG]

Influencing systemic improvement in public administration

 

The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.

 

 

The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.

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References

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We don't know whether the most recent response to this request contains information or not – if you are Marek please sign in and let everyone know.