Application for IC review: FOI-2023-10048
APPLICATION FOR IC REVIEW
OMBUDSMAN’S REFERENCE: FOI-2023-10048
Dear Office of the Australian Information Commissioner,
FACTS
The source of facts can be accessed here: https://www.righttoknow.org.au/request/d....
On 20 April 2023, I applied to the Office of the Commonwealth Ombudsman for access to documents in the possession of the Office of the Commonwealth Ombudsman relating to Iain Anderson’s appointment as Commonwealth Ombudsman: https://www.righttoknow.org.au/request/d....
On 8 May 2023, I wrote to the Office of the Commonwealth Ombudsman requesting acknowledgement of receipt of my FOI request: https://www.righttoknow.org.au/request/d....
On 11 May 2023, a legal officer in the Office of the Commonwealth Ombudsman acknowledged receipt of my FOI request.
On 16 May 2023, I received an email from Steven, a senior legal officer in the legal team of the Office of the Commonwealth Ombudsman: https://www.righttoknow.org.au/request/d....
Steven invited me to withdraw or revise my FOI request, and also claimed that he “might consider transferring the request to the AGD” or use a practical refusal ground to refuse access to the requested documents.
On 16 May 2023, I wrote to Steven and set out my objections to his email: https://www.righttoknow.org.au/request/d....
On 19 May 2023, Steven wrote to me noting that “I confirm that the Office will proceed to process your request (FOI-2023-10048).” He then requested that I agree to his request for an extension of time to process the FOI request, noting that he may need to “apply to the Information Commissioner for an extension of time under s 15AC of the FOI Act”: https://www.righttoknow.org.au/request/d....
On 22 May 2023, I requested more information from Steven, because I felt his email of 19 May 2023 was lacking in the necessary particulars required for me to make an informed decision: https://www.righttoknow.org.au/request/d....
On 24 May 2023, Steven wrote to me noting that “[g]iven it is now more than 30 days since the FOI request was received, we must now request an extension of time from the Information Commissioner under s 15AC of the FOI Act”: https://www.righttoknow.org.au/request/d.... He also noted that he hoped to provide me with a decision in respect of my request on 26 May 2023.
I have received no correspondence from either the Office of the Commonwealth Ombudsman or anybody in the Office of the Australian Information Commissioner since that email of 24 May 2023 was sent to me by Steven. In other words, nobody in the Office of the Australian Information Commissioner has notified me that an extension of time has been granted to the Office of the Commonwealth Ombudsman to process my request, and nobody in the Office of the Commonwealth Ombudsman has bothered to process my request in something that resembles anything timely.
CONSEQUENCE OF FAILURE TO PROVIDE DECISION
Steven's failure to process my FOI request within the 30 day period means that, under the FOI Act, the principal officer of the Office of the Commonwealth Ombudsman is taken to have personally refused access to the documents that I requested.
REQUEST FOR IC REVIEW
I would like an official in the Office of the Australian Information Commissioner to make a decision according to law.
In the alternative, I request that somebody in the Office of the Australian Information Commissioner contact Steven or somebody in the Office of the Commonwealth Ombudsman to remind the relevant official that the conduct of members of the legal team in the Office of the Commonwealth Ombudsman does meet the legal obligations by which these officials are bound, and remind the relevant official that he or she is still expected to process the FOI request.
REFERENCE ID
I kindly request that you provide me with a reference ID for this IC review application as soon as reasonably possible.
Yours faithfully,
James Andrew Douglass
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References
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Our reference: MR23/00721
Agency Reference: FOI-2023-10048
By email: [1][FOI #10375 email]
Receipt of your IC review application concerning the Commonwealth
Ombudsman (COMBO)
Dear Mr Douglass
Thank you for your application for Information Commissioner Review (IC
review).
The Office of the Australian Information Commissioner (OAIC) is
considering your application.
If you wish to advise the OAIC of any changes to your circumstances,
including your contact details or if your FOI request has been resolved,
please write to [2][email address] and quote MR23/00721.
Please note that the OAIC’s preference is to receive IC review
applications through our [3]online smartform, as this allows an
application to be automatically registered and acknowledged, which in turn
allows us to progress an application more quickly. Please note that future
applications that are made by email will take longer to acknowledge and
progress as they require manual registration.
Kind Regards,
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
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disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
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Our reference: MR23/00721
Agency reference: FOI-2023-10048
James Andrew Douglass
By email: [1][FOI #10375 email]
Your IC review application about the Commonwealth Ombudsman
Dear James,
I refer to your application for IC review of a decision by the
Commonwealth Ombudsman (the Agency) that was deemed to have been refused.
On 13 July 2023, the Agency notified the Office of the Australian
Information Commissioner (the OAIC) that it had made, and provided you
with a revised decision regarding the information you requested on 11 July
2023.
Can you please notify us by 2 August 2023 if you now wish to:
o Withdraw the IC review application, or
o Proceed with the IC review application.
Should you wish to proceed with the IC review application, please provide
the following information by 2 August 2023:
1. identify the aspect(s) of the agency or Minister’s decision about
which the review is sought
2. state why you disagree with the agency or Minister’s decision
3. identify which documents you consider have been wrongly refused
or which exemptions have been incorrectly applied
Intention to decline to continue IC review
Please note that the Commissioner’s written [2]direction to IC review
applicants provides that:
o where an applicant wishes to proceed with a review of a substantive
[or revised] decision they must explain why they disagree with the
decision and the basis on which they wish to proceed with the IC
review [1.33], and
o applicants must respond to enquiries from the OAIC within the period
provided unless there are circumstances warranting a longer period to
respond [1.22].
Section 54W(c) of the FOI Act provides that the Information Commissioner
may decide not to undertake, or continue to undertake, an IC review where
an applicant fails to comply with a direction of the Information
Commissioner.
Should we not receive a response from you to this email by 2 August 2023
your IC review application will be finalised by a delegate of the
Information Commissioner under s 54W(c).
If you have any questions regarding this email, please contact us via
email at [3][email address]. Please quote the OAIC reference number at
the top of this email in all correspondence.
Kind regards,
[4]A blue Georgia Furlong (she/her)
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with white Intake and Early Resolution Officer
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Description Freedom of Information Regulatory Group
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generated with Office of the Australian Information Commissioner
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Sydney | GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [5][email address]
The OAIC acknowledges Traditional Custodians of Country across
Australia and their continuing connection to land, waters and
communities. We pay our respect to First Nations people,
cultures and Elders past and present.
[6]Subscribe to Information Matters
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email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
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References
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Dear Ms Furlong,
I would like to proceed with the IC review application.
On 24 May 2023, Steven Mulipola, the Ombudsman’s Senior Legal Officer, wrote to me: https://www.righttoknow.org.au/request/d....
He stated “I can indicate that there are at least 35 documents for consideration for access under the FOI Act.”
On 11 July 2023, some 50 days after the decision was actually due, Mr Mulipola provided me with an 11 page document.
I am no mathematician, but even I can tell that there is something amiss about a claim that there are “at least 35 documents for consideration for access under the FOI Act”, only for 11 pages of documentation to be released under the FOI Act.
In fact, Mr Mulipola has stated the following in his letter of decision:
I have identified six (6) documents, totalling 11 pages that are within the scope of your request.
I do not understand why there is a discrepancy between Mr Mulipola’s earlier claim that there were “at least 35 documents for consideration for access under the FOI Act” and his later claim that there were only six documents identified within the scope of my request.
Mr Mulipola’s claims do not add up.
I would like the Information Commissioner to re-consider the “at least 35 documents” that Mr Mulipola suggested were the source of the 50 day delay so that I can be confident that Mr Mulipola hasn’t deliberately suppressed the other (at least) 29 documents from lawful consideration.
In any event, a delay of this magnitude is unjustifiable in light of the fact that only 11 pages of documentation were produced under the FOI Act.
Yours sincerely,
James Andrew Douglass
OAIC reference: MR23/00721
Agency reference: FOI-2023-10048
By email: [FOI #10375 email]
Good afternoon James,
Thank you for your email advising that you wish to proceed with the IC review.
This matter is proceeding to assessment by a senior member of the FOI team.
Once assessed, we will contact you with an update on next steps.
Unfortunately, I am unable to provide a timeframe on when you will next be contacted.
If you have any enquiries about your matter in the meantime, please contact us at [email address].
Kind regards,
Georgia Furlong (she/her)
Review Advisor
Freedom of Information Regulatory Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [email address]
The OAIC acknowledges Traditional Custodians of Country across Australia and their continuing connection to land, waters and communities. We pay our respect to First Nations people, cultures and Elders past and present.
Our reference: MR23/00721
Agency reference: FOI-2023-10048
James Douglass
By email: [1][FOI #10375 email]
Dear James Douglass
Thank you for your application for review. We have today informed the
Commonwealth Ombudsman that the Information Commissioner will undertake an
IC review and requested information to assist with progressing the review.
We will provide you with an update when we have heard from the
Commonwealth Ombudsman.
Kind regards
[2][IMG] Dipali Goel (she/her)
Intake and Early Resolution Officer
Freedom of Information Branch
Office of the Australian Information Commissioner
Sydney |GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [3][email address]
The OAIC acknowledges Traditional Custodians of Country across Australia
and their continuing connection to land, waters and communities. We pay
our respect to First Nations people, cultures and Elders past and present.
[4]Subscribe to Information Matters
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. mailto:[FOI #10375 email]
2. https://www.oaic.gov.au/
3. mailto:[email address]
4. https://www.oaic.gov.au/engage-with-us/n...
Dear Ms Goel,
Thank you for keeping me in the loop.
Yours sincerely,
James Andrew Douglass
Dear Ms Goel,
I refer to your email of 23 August 2023. Has the OAIC received any information from the Commonwealth Ombudsman in relation to MR23/00721, and is the OAIC in a position to provide me with an update on MR23/00721?
Yours sincerely,
James Andrew Douglass
Our reference: MR23/00721
Agency reference: FOI-2023-10048
Mr James Andrew Douglass
By email: [FOI #10375 email]
Progress update regarding your IC review application about a decision of the Commonwealth Ombudsman
Dear Mr Douglass,
Thank you for your correspondence seeking an update regarding the progress of the above IC review application with the Office of the Australian Information Commissioner (the OAIC) about a decision of the Commonwealth Ombudsman (the respondent) under the Freedom of Information Act 1982 (Cth). I apologise for the delay in responding to your update request.
At this stage, the matter is awaiting allocation to a review adviser. Due to the number of IC review applications on hand, and the need to prioritise IC review applications that were received earlier, this may not occur for some time. After the file is allocated, the review adviser will contact you to advise of next steps in the matter. I can also confirm that we have received the respondent's submissions in relation to our request for information.
In the meantime, we are working to progress this IC review application in readiness for allocation.
Should you wish to follow up on this matter further, please contact the OAIC enquiries line on 1300 363 992 or email [email address] and quote the reference number MR23/00721.
Kind regards,
Samra Karim (she/her)
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
E [email address]
The OAIC acknowledges Traditional Custodians of Country across Australia and their continuing connection to land, waters and communities. We pay our respect to First Nations people, cultures and Elders past and present.