Advice pertaining to refusal to process FOI requests received via righttoknow.org.au

Mark Newton made this Freedom of Information request to Australian Taxation Office

The request was successful.

From: Mark Newton

Delivered

Dear Australian Taxation Office,

On May 11 2017, Information Commissioner Timothy Pilgrim found that the Australian Taxation Office (ATO) was failing to meet its obligations under the Freedom of Information (FOI) Act by refusing to process requests received via righttoknow.org.au.

The Office of the Australian Information Commissioner was unable to find any lawful basis for the ATO to refuse requests, and anticipated that the ATO would be issued with an Implementation Notice if it failed to adequately address the issue.

The ATO has clearly harboured a mistaken belief that its refusal to comply with FOI legislation is lawful, and rendered that belief into Departmental policy late last year.

I request disclosure of records which document advice received or discussion carried out in formulation of the policy decision to refuse righttoknow.org.au FOI requests.

Yours faithfully,

Mark Newton

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Ben Fairless left an annotation ()

Information in relation to the decision can be found here: https://www.openaustraliafoundation.org....

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From: FOI
Australian Taxation Office


Attachment ResponseRe RTK.pdf
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Dear Applicant,
 
 
 
 
 
Regards,
 
FOI Team
 
 
 

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From: Mark Newton

Delivered

Dear FOI,

Good morning.

The material you have cited is not responsive to my request.

The three disclosure log entries you've quoted each refer to 17 pages of emails, mostly from Jonathan Todd, asserting the ATO's (now rejected, likely unlawful) policy of not responding to RTK FOI requests.

I already knew the ATO had that policy, I don't need to see Mr Todd repeatedly telling various people that it exists. I am seeking information about why the ATO considered that the policy was consistent with the law.

Repeated instances of Mr Todd simply asserting that that's how the Government will behave is not the same thing as advice describing the legal justification for the decision.

Now that the OIAC has stipulated that there is no legal justification for it, I am seeking documents that reveal why the ATO believed there was.

As such, I do not give consent to withdraw this request.

Yours sincerely,

Mark Newton

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From: FOI
Australian Taxation Office


Attachment Attachment.pdf
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Dear FOI Applicant,
 
Please see the attachment.
 
 
 
Yours faithfully,
 
FOI Team
 
 
 

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From: FOI
Australian Taxation Office


Attachment Notice.pdf
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Dear FOI Applicant,
 
Please see attachment.
 
 
Yours faithfully,
 
FOI Team
 

show quoted sections

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Mark R. Diamond left an annotation ()

Why is it that no one has complained about the behavior of the ATO. Having refused for 9 months to process requests filed through Right to Know, they now purport to comply with the law but do not do so. The requirement of s 15(2)(c) of the Act is that a request under FOI "... 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)". But the ATO doesn't appaer to be doing that, no doubt so as to avoid the possibility that anyone might comment about such notices. Instead, they do not send the notices required by the Act to the applicant. Instead, they send a "meta-notice" (i.e., a notice about where you might find a notice) to the applicant. A complaint (in fact multiple complaints) to the Information Commissioner are warranted.

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Mark Newton left an annotation ()

I think people have complained about that behavior. The OAIC has investigated and recommended that they resume processing of FOI requests from Right To Know.

(and they responded to this one)

That's good, isn't it?

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Mark R. Diamond left an annotation ()

I think you missed the point. Complaint were made; the OAIC recommended that the ATO resume processing requests from Right to Know, and now the ATO have no half-heartedly resumed the processing in a way that very pointedly does not conform to the requirements of the Act. What the ATO ought to be doing is sending you a decision notice ... but they haven't done that. Instead, they have sent you a meta-notice --- a letter to tell you that the notice they ought to have sent directly to you can instead be found somewhere else! One might guess at why they are doing this, given the submissions they made to the IC! Additionally, one might ask what the ATO do when a person sends a request by snail mail. I somehow doubt that those people are being sent meta-notices ... and again, you might ask why that would be.

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Mark Newton left an annotation ()

I don't quite agree.

I asked for documents in an FOI request, they've released them on their website.

They don't have to email them directly to me.

I'm not particularly impressed with the level of detail in their response, but it's hard to argue with the process that was followed.

Various other agencies do the same thing, by the way: The Communications portfolio agencies struck-up a disclosure log when the NBN was getting kicked off, to make sure that any info released was available to everyone, so that The Australian couldn't get any embarrassing scoops about the NBN. It's not *great*, but it's hard to see how it's noncompliant.

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Mark R. Diamond left an annotation ()

Again, I think that you have misunderstood. The information might be released onto a website and published on their disclosure log and their is a clear authority (and indeed requirement) in the Act for publication on a disclosure log ... if not of the actual released material then at least of how a person might obtain the released material. But what of a decision notice such as one issued under s 24AB, or a notice relating to an access refusal decision. Those notices quite clearly must be sent to the applicant. Moreover, there is no authority for the agency to publish the names of applicants on their website but that is what they do.

The fact that some applicants might not object to the arrangement, or the fact that no one has yet complained does not mean that it satisfies the requirements of the Act.

In the case of my own recent application, I can't even access the notice that they should have sent to me (https://www.righttoknow.org.au/request/i... ) and it is not at all clear that I am required to overcome whatever impediment there might be. The decision notice ought to have been sent directly to my electronic address at Right to Know.

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