APP 12 Access Processing Statistics

Verity Pane made this Freedom of Information request to Department of Defence

The request was partially successful.

From: Verity Pane

Delivered

Dear Department of Defence,

I request under FOI the following documents (s 17 compilation if necessary).

The time period for the scope of my FOI is FY16/17.

The subject matter for the scope of my FOI is all APP 12 Privacy Act access applications made to the Defence Privacy email account ([email address]) or by letter to the Defence Privacy Officer (so the scope only includes those applications made centrally to Defence’s main privacy office/officer, which I understand is based in the Defence People Group (DPG), from material obtained in an earlier FOI). It does not include APP 12 access applications made to other areas of Defence where DPG members where not involved in coordinating a response to the applicant.

I request to be complied under s 17 (unless existing document exists that provides the information sought), for the above scope, the following:
* the number of APP 12 applications received (broken down by month in FY16/17);
* for each APP 12 application received during FY16/17, the number of days that elapsed before Defence gave an APP 12 decision (from the day following the date the APP 12 access application was made); and
* the number of APP 12 access decisions refused in full, provided in part, or provided in full (from those received in FY16/17)

This information is not too dissimilar from that required to be provided by Defence in respect of FOI applications, and reported to the OAIC, so it’s possible a document that provides this information already is held by Defence, but in case it’s not, s 17 does apply.

Prior to any possible consultation, I require Defence to have conducted a proper sampling to establish a baseline estimate of processing time as specified by para 3.106 of the s 93A FOI Australian Information Commissioner Guidelines to agencies, rather than the generic random estimates Defence has provided in the past (given there have been a few IC review decisions by the Commissioner noting that Defence’s back of envelope estimates have been wildly overestimated).

Consideration should be given by Defence to publish privacy statistics publicly anyway, to benchmark its performance here (as I believe ANAO recently recommended).

Yours faithfully,

Verity Pane

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From: FOI
Department of Defence

UNCLASSIFIED

Good afternoon Verity,

Thank you for your FOI request. I have spoken to the Defence Privacy team and they have advised that they have no document that matches your request, but they are happy to review individual cases and produce a table that addresses the points you raise.

Are you willing for me to proceed with your request as an administrative release outside of the FOI Act?

Regards,
Jo

____________________________
Jo Groves
Assistant Director - Information Access
Information Management and Access
Governance & Reform Division
 
Telephone:  (02) 6266 3948
CP1-6-005   [email address

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From: Verity Pane

Delivered

Dear Jo,

Given Defence has used administrative access requests (AAR) as a mechanism to excuse itself from statutory processing timeframes, I do not wish to convert this FOI to AAR.

However, Defence may - if it believes access can be given earlier - process these requests in tandem (given no additional work is involved), and should the s 17 document be compiled before the 30 day period, provide release under AAR and I will subsequently withdraw the FOI.

That way, no disadvantage is present to either party, and Defence is not encouraged to game the request (as recently happened with a late “consultation” claim by Defence for commercial confidence implied, on what is copies of CMS Transaction Reports, which shows Defence doesn’t always approach its obligations with good faith).

Yours sincerely,

Verity Pane

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From: FOI
Department of Defence

UNCLASSIFIED

Thank you Verity, I will formally task your request.

Regards,
Jo

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From: Groves, Joanne MRS
Department of Defence

UNCLASSIFIED

Good afternoon Ms Pane,

In regards to your below FOI inquiry. As you know, we have registered this as a formal FOI request, but you agreed to take the response administratively if it could be achieved sooner than the statutory 30 day period.

In Financial Year 2016-17, the Defence Privacy Office received one request for access to personal information under Australian Privacy Principle (APP) 12.

The individual concerned has complained to the Office of the Australian Information Commissioner about, amongst other things, Defence's handling of the request and is also currently seeking judicial review of our decision.

While there is ongoing consideration of the request and complaint it would be inappropriate to provide information about it at this time. Further, once the complaint is finalised it would be inappropriate to provide details about the request as such details are likely to identify the individual who made the APP12 access request.

Wherever possible Defence releases information administratively without the need for the individual to seek access under the Privacy or FOI Acts. Requests for access to information are typically sought directly from the areas who hold that information. There is no central record of such local area requests. The vast majority of requests for information and records which Defence receives are actioned by Defence Archives and Service Centres (DASC) - http://www.defence.gov.au/records/

Given this advice I will now consider your FOI inquiry complete.

Regards,
Jo

____________________________
Jo Groves
Assistant Director - Information Access
Information Management and Access
Governance & Reform Division
 
Telephone:  (02) 6266 3948
CP1-6-005   [email address

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From: Verity Pane

Delivered

Dear Joanne,

Your inference that access would be provided sooner if requested under administrative access (which your agency under a earlier FOI claimed released it from any obligation to provide access before any date, the timing of your response completely at your discretion) could be interpreted as coercion and implied penalty if FOI is used, which is contrary to the obligations the Act puts on agencies. Given your agency has gamed administrative access, to the detriment of applicants, I would suggest the reluctance of applicants to use it is entirely your agency’s own doing, given at least the FOI process puts specific obligations on agencies to perform (and provides review rights).

I take it your response today is not a decision per se, given it’s informality. But you appear to be saying only one APP 12 application was made in the time frame of the scope of the FOI (so hardly complex and voluminous to search and review, and given the differences between using a formal template letter to respond under FOI or a more vague and casual response as you have just given now, no difference in the time to take to process under either access scheme either, unlike you claim).

You appear to be suggesting Defence will be claiming exemption, for legal and personal information reasons, although you don’t specify the exemption sections of the Act, nor explain how - given aggregate data of the number of APP 12 applications received (broken down by month in FY16/17); the number of applications refused in full, in part, or agreed to - would reach these thresholds. The data sought has no personal data involved (although in your response you have given far more detail about this than would be appropriate, given it’s only one application, and the information given would be sufficient to identity that applicant, which is terribly bad form of you given an APP 12 Access Application is for personal information - in fact, you have potentially breached the Privacy Act by interfering with that applicant’s privacy I’d posit, by publicly posting considerable information that, in all but naming that applicant, enables identification _ I hope for you sake they don’t stumble across your disclosures).

If, as you claim, there is only AAP 12 application for FY16/17 (which took you more than two weeks to search and identity...), this FOI is very straightforward and simple, and I’d suggest you get on with it, instead of complaining about it, and breaching other Acts in doing so. It’s a very unprofessional response you have published, and it justifies Defence being one of my three agencies focussed on, in terms of my thesis study (so I guess that’s something at least, in that I made the right choice clearly).

Yours sincerely,

Verity Pane

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From: Verity Pane

Delivered

Dear Joanne,

Furthermore, contrary to your claim this FOI is now complete, I can assure you no decision has been received, and your informal and inappropriate email is not a valid decision under the Act.

Therefore this FOI application is still open, and will be treated as such. Failure to provide proper decision by the statutory due date in result in a deemed refusal, and I will follow that up.

To be blunt, your behaviour here is grossly unprofessional and unethical, and is well below the minimum required by the Act.

Yours sincerely,

Verity Pane

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Verity Pane left an annotation ()

The behaviour of Jo Graves here is, in short, disgusting and a gross breach of ethics, and demonstrates that Defence’s FOI area is a repeat offender and abuser of the FOI Act’s aims, objectives and obligations.

If an FOI application has been made, it cannot be replaced by an administrative access decision that *refuses* access (access grant decision maybe, but not with a access refusal).

Similarly, one an FOI application has been made, there is no discretion or legal power that allows an agency to decide for itself that it doesn’t have to comply with the FOI legislation. Only the applicant can release the agency from its statutory obligations, which has not been the case here.

It seems the Defence FOI area is infected with a corrupt and unlawful culture, with a real repugnance for its statutory obligations, and while this is perfect for my thesis, it’s not very good for the Australian public.

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From: FOI
Department of Defence


Attachment FOI Your Review Rights 3.pdf
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Attachment FOI 178 1718 SOR Release in Full.pdf
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UNCLASSIFIED

Good afternoon Ms Pane,

1.    Please find attached the Statement of Reasons relating to FOI
178/17/18 with 1 Enclosure.

FOI Disclosure Log

2.    In accordance with the requirements of section 11C of the FOI Act,
Defence is required to publish details of information released under the
FOI Act. Defence publishes identified documents relating to requests
within five working days of receipt by the applicant or immediately
following any publication of the released material. Defence will also
publish the statement of reasons with privacy deletions.  This request
will be published immediately.

Rights of Review

3.    Under the provisions of section 54 of the FOI Act, you are entitled
to request a review of this decision. Your review rights are attached.

 

4.    Should you have any questions in regard to this matter please
contact this office.

 

 

 

Kind Regards,

 

FOI Operations

 

Information Management Access

Governance and Reform Division

 

Department of Defence | CP1-6-001|

PO Box 7910 | CANBERRA BC ACT 2610
Ph:  02 6266 2200

email: [1][email address]

 

 

IMPORTANT: This email remains the property of the Department of Defence
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If you have received this email in error, you are requested to contact the
sender and delete the email.

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From: Verity Pane

Delivered

Dear Peter,

I am pleased to see that the inappropriate, unlawful and unethical response of Jo Groves, refusing access informally, and claiming the FOI was now closed and “complete” has wisely been abandoned and Defence has subsequently provided proper FOI decision response as was always required under the FOI Act.

Of course this does not quite explain Jo Groves’ appalling behaviour in claiming it would be “inappropriate” to provide release of the information sought under s 17 (despite none of that information sought being able to make an individual’s identity apparent, or be reasonably be ascertained), but then providing information of no relevance to the FOI application, which ironically and rather appallingly, would make an individual’s identity reasonably be ascertained (it appears Jo Greaves intentionally sought to breach the Privacy Act, which isn’t a very good look).

I have sought of gotten used to the very low standard of Defence FOI responses, but to breach not only one but two Acts on the same FOI has to set some sort of new record low (we’re beyond just scrapping the barrel, but punching right through the bottom...).

Now this FOI can be closed (well at least in terms of response to me, I expect however Defence will still be dealing with this one for some time to come).

Yours sincerely,

Verity Pane

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Verity Pane left an annotation ()

I’ve marked this FOI partially successful given it would seem an abuse to infer this FOI was handled correctly, given the appalling behaviour of Jo Graves here.

It certainly confirms there are systemic issues within the Defence FOI processing area, with either an extremely poor level of skill or knowledge in that area (which seems unlikely) or a deeply embedded culture of wilful unethical behaviour and abuse of office (which, given the evidence, seems on balance of probabilities to be more likely).

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