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APSC produced document for the IPA

Fliccy made this Freedom of Information request to Australian Public Service Commission

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From: Fliccy

Delivered

Dear Australian Public Service Commission,

The following is an FOI request.

I refer the APSC to the following media coverage:

https://www.crikey.com.au/2017/10/24/lib...

http://www.canberratimes.com.au/national...

https://www.themandarin.com.au/85236-thr...

As I understand, that media coverage relates to this FOI decision: https://www.righttoknow.org.au/request/i... and specifically, the production of a 13 page document by APSC staff (titled “Examples of ‘soft’ arrangements in Commonwealth enterprise agreements” (the “APSC produced document for the IPA”) beginning at page 16 of this document https://www.righttoknow.org.au/request/3... ) for the use and benefit of far right wing political extremist group, the Institute of Public Affairs (the ‘IPA’) – a political group for which the current Public Service Commissioner is a contributing member, and former director.

As I understand from the articles and the FOI documents referred to above, certain APSC staff consider it an appropriate use of scarce Commonwealth resources/taxpayer money to provide research and authoring services to the IPA in order to further the political objectives of the IPA and its membership (including the Public Service Commissioner).

I request access to all documents held by the APSC that relate to the APSC produced document for the IPA.

To narrow the scope of my request I am willing for it to relate only to email documents (ie. emails and any attachments to those emails) and I am willing for the APSC to disregard all but the last email in email chains/threads (but only on the basis that the preceding emails in those email chains will be included in the last email of those email chains). I am also willing for the APSC to disregard any documents within the scope of my request that have already been made available here: https://www.righttoknow.org.au/request/3...

The APSC staff who took part in the preparation of the APSC produced document for the IPA have likely acted illegally (noting the obligations, prohibitions and criminal offences established by the Public Service Act 1999, the Public Governance, Performance and Accountability Act 2013 and the Criminal Code Act 1995) and so part of the purpose of my request is to ensure that those officers are brought to justice.

While I understand that the Public Service Commissioner was intimately involved in the preparation of the document at issue, I understand that other APSC staff had some involvement in the preparation of the document.

I note, for example, from pg 9 of 32 of the document available here: https://www.righttoknow.org.au/request/3... that the APSC’s Group Manager Corporate thinks it appropriate to copy in members of the IPA into intra senior management APSC communications as if those IPA members are on the APSC’s/Commonwealth’s payroll and part of the APSC’s senior management team and so perhaps the APSC’s Group Manager Corporate played some part in the preparation of the document at issue.

I remind the APSC of the following:

- the objects of the FOI Act which relevantly include “increasing scrutiny, discussion, comment and review of the Government’s activities”, “increasing recognition that information held by the Government is to be managed for public purposes, and is a national resource” and “that functions and powers given by [the FOI Act] are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost”.
- the criminal offence established by section 24 of the Archives Act 1983; and
- the obligations imposed on APSC staff by the Public Service Act 1999 (in particular the obligations to behave honestly, apolitically, with integrity and transparently) and the Public Governance, Performance and Accountability Act 2013.

Further, if any member of the APSC’s Legal Group who holds a practising certificate processes this request (or indeed if they were involved in the preparation of the document at issue), I remind those APSC officers of their professional obligations in relation to their paramount duty to the administration of justice and to avoid any conduct which may be seen to compromise their integrity and professional independence.

I also note relevant advice from the FOI Guidelines that provides that “[w]here public servants’ personal information is included in a document because of their usual duties or responsibilities, it would not be unreasonable to disclose unless special circumstances existed” and that “[w]hen considering whether it would be unreasonable to disclose the names of public servants, there is no basis under the FOI Act for agencies to start from the position that the classification level of a departmental officer determines whether his or her name would be unreasonable to disclose. In seeking to claim the exemption an agency needs to identify the special circumstances which exist rather than start from the assumption that such information is exempt.”

Lastly, I note that it would be clearly improper (at least from the perspective of an ethical, honest and law abiding public servant) for this request to be processed by any person who has any affiliation whatsoever with the Liberal Party, the IPA or any other far right wing political extremist group. To the extent that there are any authorised officers at the APSC who have no such affiliations, I request that they process this request independently of other APSC officers who are affiliated with extremist groups of that persuasion.

Link to this

From: Fliccy

Delivered

Dear Australian Public Service Commission,

Here's a link to another article on this matter for your consideration. It was written by a public sector ethics expert who considers that the APSC staff involved in this incident have acted illegally:

http://www.canberratimes.com.au/national...

Obviously, there's a wide public interest in circumstances where highly paid senior officials (including an agency head) at an agency charged with "promot[ing] high standards of integrity and conduct in the APS" act illegally.

Link to this

From: FOI
Australian Public Service Commission

Dear Fliccy,

I acknowledge receipt of request dated 2 November 2017 seeking access to documents under the Freedom of Information Act 1982 (Cth) (the FOI Act). A copy of your request can be found below.

The statutory timeframe for responding to your request under the FOI Act is 30 days from the date of receipt. This timeframe may be extended in certain circumstances. We will advise you if such circumstances arise.

The department will advise you if a charge is payable to process your request and the amount of any such charge as soon as practicable.

Should you have any questions in relation to your request, please contact the FOI team by reply email.

Kind regards,

FOI Officer
Legal Services

Australian Public Service Commission
Treasury Building, Parkes Place West, Parkes ACT 2600 GPO Box 3176, Canberra ACT 2601

show quoted sections

Link to this

From: FOI
Australian Public Service Commission


Attachment Correspondence C17 2088.pdf
126K Download View as HTML


Dear Applicant,

Please find attached correspondence relating to your request.

Regards,

FOI Officer
Legal Services

Australian Public Service Commission
Treasury Building, Parkes Place West, Parkes ACT 2600 GPO Box 3176, Canberra ACT 2601

show quoted sections

Link to this

From: Fliccy

Delivered

Dear FOI,

I am writing in response to the APSC’s letter of 15 November 2017 advising that I am liable to pay a charge, preliminarily assessed to be $233.77, for the processing of my FOI request dated 2 November 2017.

I contend that charge should not be imposed because release of the documents is in the general public interest, including because those documents will tend to demonstrate that the Public Service Commissioner, and potentially other members of the Australian Public Service Commission’s (APSC’s) senior management team have engaged in serious and unlawful misconduct. My submissions in support of my contention follow.

[1] The Public Service Act 1999 requires that public servants be impartial and apolitical (s.10(5)) and that public servants be engaged by way of a merit based selection process (s.10A(2)). Pursuant to paragraph 41(1)(b) of the Public Service Act 1999, the Public Service Commissioner is required to uphold high standards of integrity and conduct in the Australian Public Service.

[2] In December 2015, Mr John Lloyd was appointed to the position of Public Service Commissioner in the absence of a merit-based selection process after being offered the job over the phone by Senator Eric Abetz: http://parlinfo.aph.gov.au/parlInfo/sear....

[3] Immediately prior to his appointment, Mr Lloyd was a member of the Liberal Party and also a Director and member of far-right wing ‘think tank’ and political lobby group, the Institute of Public Affairs (IPA): https://westerncivilisation.ipa.org.au/p....

[4] Mr Lloyd remains a contributing member of the IPA: http://parlinfo.aph.gov.au/parlInfo/down... (pp.93-94)

[5] Among its political objectives, the IPA seeks the abolition of large swathes of the Australian public service: http://ipa.org.au/publications-ipa/ipa-r....

[6] Earlier this year, in response to a freedom of information request (https://www.righttoknow.org.au/request/i... ) seeking copies of correspondence between the APSC and the IPA, the APSC provided access to the following document: https://www.righttoknow.org.au/request/3... (the 32 page “FOI document”).

[7] Document 4 (beginning at page 12 of the 32 page FOI document) concerns the production of a 13-page document (beginning at page 16 of the FOI document), researched and prepared by APSC staff, at the direction of John Lloyd, titled ‘Examples of ‘soft’ arrangements in Commonwealth enterprise agreements” (the ‘IPA document’).

[8] The IPA document has been produced following a discussion between John Lloyd and his colleagues at the IPA, for the purposes of an article to be produced by the IPA. The IPA document was not made publicly available (other than in response to a FOI request). In effect, the IPA document was researched, prepared and produced by Commonwealth public servants for the use and benefit of the IPA.

[9] In response to being provided with the APSC produced document, the IPA thanked Mr Lloyd indicating that the document is ‘very handy’ (see pg 12 of 32 of the FOI document). Indeed it was. The IPA subsequently prepared and published an article later that year titled “Driving a soft bargain” examining the Commonwealth Public Sector Enterprise Agreements 2011 – 2014” (available here: https://ipa.org.au/publications-ipa/rese... which criticises what the IPA perceives to be the overly generous pay and conditions of rank and file Commonwealth public servants.

[10] The IPA’s article is substantially based on the APSC produced IPA document. There are considerable portions of the IPA’s article that plagiarise, in many cases word for word, information contained in the APSC produced IPA document. For example, paragraphs 1 to 3 of the APSC produced IPA document reads as follows:
1. Over the past decade, APS employees have enjoyed wage increases substantially above CPI.
2. During this time, APS remuneration increases totalled 50.7 per cent, compared to CPI increases of 31.8 per cent. That is more than most other industries.
3. In addition to these generous wages, Commonwealth public sector agreements have accumulated other generous terms and conditions. These go beyond those provided by minimum safety nets, often well above community standards.

Page 24 of the IPA article contains the following passages:
Over the past decade, APS employees have enjoyed wage increases substantially above CPI. During this time, APS remuneration increases totalled 50.7 per cent, compared to CPI increases of 31.8 per cent. That is more than most other industries.
[…]
In addition to these generous wages, Commonwealth public sector agreements have
accumulated other generous terms and conditions. These go beyond those provided by minimum safety nets, often well above community standards.

[11} Another example is that at paragraph 19 of the APSC produced IPA document (on page 6 of that document) which reads as follows:
19. Most APS agreements contain prescriptive arrangements which guarantee union delegates access to use workplace facilities, infrastructure, technology and resources for the purposes of carrying out their role with their union. […]

Page 21 of the IPA article contains the following passage:
All agreements contain prescriptive arrangements which guarantee union delegates access to use workplace facilities, infrastructure, technology and resources – and paid time – for the purposes of carrying out their role with their union.

[12] The IPA’s article does not acknowledge or attribute the APSC prepared IPA document. Effectively, the APSC, at Mr Lloyd’s direction, has provided taxpayer funded research and writing services to Mr Lloyd’s colleagues and fellow members at the IPA in order to pursue the political objectives of the IPA and its members (which include Mr Lloyd). At the direction of John Lloyd, the APSC has been used as a research outpost facility for a far-right think tank and political lobby group of which Mr Lloyd is a longstanding member and former staffer.

[13] The IPA then proceeded to use the article as the basis for its submission in support of the Government’s enterprise bargaining policy for the public service to the recently conducted Senate inquiry into the Government’s workplace bargaining policy for the public service (https://www.aph.gov.au/Parliamentary_Bus... ).

[14] The IPA’s submission to that Senate inquiry is here: http://www.aph.gov.au/DocumentStore.ashx.... The IPA’s submission to that inquiry, together with the APSC’s submission, are the only submissions to that inquiry, of the 503 lodged, in support of the Government’s bargaining policy for the public service. The IPA’s submission does not acknowledge or attribute the APSC produced IPA document, despite that the IPA’s submission has effectively been ‘ghost written’ by the APSC at the direction of John Lloyd.

[15] The IPA then used the APSC produced IPA documents as the basis for its oral submissions at that inquiry (see here: http://parlinfo.aph.gov.au/parlInfo/sear....

[16] Mr Lloyd was present at the Senate Inquiry’s public hearing but did not disclose the APSC’s role in the preparing the IPA document which formed the basis of the IPA’s written and oral submissions.

[17] The Coalition Senators' Dissenting Report resulting from that Senate Inquiry (available here: http://www.aph.gov.au/Parliamentary_Busi... is substantially based on the IPA’s submission, which is based on the work done by the APSC, at the direction of John Lloyd, for the use and benefit of the IPA.

[18] By the actions set out above, it is apparent that Mr Lloyd, and potentially other members of the APSC’s senior management team have acted illegally by contravening:
• subsections 13(1), 13(7), 13(8), 13(10) and 13(11) of the Public Service Act 1999;
• sections 26, 27, 28 and 29 of the Public Governance, Performance and Accountability Act 2013; and
• section 142.2 (abuse of public office) of the Criminal Code Act 1995.

[19] I note that Mr Lloyd’s misconduct has been the subject of a range of media coverage including:

http://www.canberratimes.com.au/national...

https://www.crikey.com.au/2017/10/24/lib...

https://www.themandarin.com.au/85236-thr...

http://www.canberratimes.com.au/national...

[20] I further note that with a total annual remuneration of $692,500, Mr Lloyd is one the highest paid statutory office holders in the Commonwealth, being paid some 50% more than the Commonwealth Ombudsman and Australia’s Chief Scientist and almost twice as much as the Information Commissioner: http://www.remtribunal.gov.au/media/docu... .

[21] In the interests of transparency and the maintenance of an apolitical, impartial and uncorrupted Australia Public Service that adheres to the rule of law, it is very much in the general public interest that the APSC release any documents associated with the serious misconduct set out above such that the administration of justice in relation to these matters is not hindered.

[22] The matters set out above indicate that Mr Lloyd and the APSC’s senior management team use scarce Commonwealth/taxpayer resources to assist the political purposes of a far-right wing political lobby group (of which Mr Lloyd is a longstanding member). I note that while Mr Lloyd is willing to direct the wholly improper use of Commonwealth resources to enrich the IPA and further its political objectives without charging that lobby group for the taxpayer services provided - when it comes to providing access to Government information held by the APSC on behalf of the public, the APSC has sought to impose a substantial charge with a view to avoiding the public scrutiny associated with a serious misuse of Commonwealth resources.

[23] Other documents contained in the FOI document demonstrate the level with which the IPA has infiltrated the APSC. For example, document 3, which begins on page 9 of the FOI document demonstrates that the IPA is comfortable contacting the APSC’s Group Manager, Corporate advising the APSC of political material that may be of interest to Mr Lloyd, to which the APSC’s Group Manager, Corporate responds by immediately referring that information to members of the APSC’s senior management team including by copying in the IPA staff member as if that person were a member of the APSC’s senior management team. Under Mr Lloyd’s direction, the APSC has become a puppet of the IPA.

[24] I now turn to the authors of the IPA article – Mr Aaron Lane and Mr James Paterson – and additional aspects of the public interest that will be served by the release of the documents the subject of my request, without a charge being imposed.

[25] One author of the IPA article, now Senator James Paterson, chaired the recently conducted Senate inquiry into the Government’s workplace bargaining policy for the public service (https://www.aph.gov.au/Parliamentary_Bus... ).

[26] Despite the requirements of the Senate Standing Orders, Senator Paterson failed to disclose to the Committee that the IPA’s submission to that Committee’s inquiry was almost entirely based upon the IPA article which he co-authored and which itself is largely based on, and plagiarises, the APSC produced IPA document. It is in the general public interest that such misconduct on the part of a Parliamentarian be referred to the Senate Privileges Committee and the production of the documents the subject of my request will shine further light on the extent of Senator Paterson’s misconduct.

[27] The other author of the IPA article is Mr Aaron Lane. Mr Lane’ character is set out here: http://www.theage.com.au/victoria/libera.... I note Mr Lane is currently a lecturer at RMIT University and is subject to a range of policies concerning academic misconduct (which encompass plagiarism). There is a general public interest in ensuring that Australia’s tertiary intuitions are not staffed by homophobic academics who engage in academic misconduct.

[28] An additional public interest aspect served by the release of the documents the subject of my request without charge relates to the copyright that subsists in the APSC produced IPA document that vests with the Crown/Commonwealth. Subject to the existence of a licensing agreement that permitted the plagiarising of the APSC produced IPA document as set out above, the Crown’s copyright comprised in the APSC produced IPA document has been exercised and infringed by:
- the IPA;
- Mr Aaron Lane (a co –author of the IPA article);
- Mr James Paterson (current Senator and co-author of the IPA article); and
- RMIT University (who published the IPA article).

[29] It would be highly unusual, and would constitute a violation of the Government’s Intellectual Property Rules (https://www.communications.gov.au/policy... for the APSC to have granted the authors of the IPA article, or the IPA itself, a copyright licence to exploit the APSC produced IPA document in the manner described above. There is a wide public interest in the enforcement of the Crown’s copyright and the documents the subject of my request will demonstrate whether the APSC granted the IPA a licence to exercise the rights comprised in the copyright that subsists in the APSC produced IPA document.

Link to this

From: Fliccy

Delivered

Dear FOI,

Further to my email to you of 15 December 2017 setting out why the release of the documents the subject of my request is in the general public interest, I refer the APSC to the following article published today: http://www.canberratimes.com.au/national... by Fairfax papers.

The article indicates that the Public Service Commissioner, Mr John Lloyd, has refused to comply with a Senate Committee request for details of communications between Mr Lloyd and far right wing political lobby group, the Institute of Public Affairs (of which Mr Lloyd is a long standing member and former staffer), presumably because doing so would further demonstrate Mr Lloyd's malfeasance in, and abuse of, public office.

This information supplements and supports my submissions in respect of this matter - clearly there is a general public interest in shining a light on the corrupt practices of the most senior, and most highly remunerated, public servants.

Link to this

From: FOI
Australian Public Service Commission


Attachment C17 2088 Signed charges decision.pdf
339K Download View as HTML


Dear Applicant,

I refer to your correspondence of 15 December 2017, as below.

Please see attached the determination about the applicable charges.

Yours sincerely,

FOI Officer
Legal Services

Australian Public Service Commission
Treasury Building, Parkes Place West, Parkes ACT 2600 GPO Box 3176, Canberra ACT 2601

show quoted sections

Link to this

From: FOI
Australian Public Service Commission


Attachment Freedom of Information request APSC produced document for the IPA.txt
6K Download View as HTML


UNCLASSIFIED

FOI Reference C17/2088

 

Good afternoon FOI Applicant

 

I refer to your FOI request lodged on 2 November 2017, where you sought
access to documents relating to all documents held by the APSC that relate
to the APSC produced document for the IPA, as outlined in the attached
email.

 

As you are aware the Information Commissioner wrote to the yourself and
the APSC on 6 April 2018 confirming the section 55F agreement signed by
the parties.

 

The APSC has recommenced processing of your request in accordance with the
section 55F agreement. 

 

It has been determined following assessment of the documents that it is
necessary for the Commission to conduct formal consultation with affected
third parties as required by sections 27 and or 27A of the FOI Act.

 

As such, in accordance with section 15(6)(a) of the FOI Act, the
processing time for responding to your request has been extended by 30
days.  The statutory due date for you to receive a decision will fall due
on 6 June 2018.

 

Kind regards

 

 

FOI Coordinator

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building

Parkes Place West, Parkes ACT 2600

Email: [1][email address]

 

 

Important: This e-mail is for the use of the intended recipients only and
may contain information that is confidential, commercially valuable and/or
subject to legal privilege. If you are not the intended recipient you are
notified that any review, re-transmission,

disclosure, dissemination or other use of, or taking any action in
reliance upon this information is prohibited. If you have received this
e-mail in error, please notify the sender immediately and delete all
electronic and hard copies of this transmission together with any
attachments.

 

 

 

Important: This email remains the property of the Commonwealth and is
subject to the jurisdiction of section 70 of the Crimes Act 1914. It may
contain confidential or legally privileged information. If you think it
was sent to you by mistake, please delete all copies and advise the
sender.

References

Visible links
1. mailto:[email address]

Link to this

From: FOI
Australian Public Service Commission

UNCLASSIFIED

FOI Reference C17/2088

 

Good afternoon Fliccy

 

I refer to your FOI request as detailed below.

 

The statutory timeframe for you to receive your decision falls due on 6
June 2018.

 

The decision maker is currently assessing the documents relevant to your
request and has determined that there are a number of duplicate documents.
 As such, are you agreeable for duplicates to be removed from the scope of
the request?

 

In addition there are a number of draft versions of the documents titled
Examples of 'soft' arrangements in Commonwealth Enterprise agreements.  To
limit the number of pages and number of documents you receive, are you
agreeable to being provided with the final version of those documents, or
do you require all draft versions of those documents?

 

Could you please respond by COB Wed 23 May 2018.  In the event that we do
not receive your response by this time, we will assume that you are
agreeable to removing duplicates and draft versions.

 

Kind regards

 

 

FOI Coordinator

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building

Parkes Place West, Parkes ACT 2600

E: [email address]

 

Important: This e-mail is for the use of the intended recipients only and
may contain information that is confidential, commercially valuable and/or
subject to legal privilege. If you are not the intended recipient you are
notified that any review, re-transmission,

disclosure, dissemination or other use of, or taking any action in
reliance upon this information is prohibited. If you have received this
e-mail in error, please notify the sender immediately and delete all
electronic and hard copies of this transmission together with any
attachments.

 

show quoted sections

Link to this

From: Fliccy

Delivered

Dear FOI,

My request, made seven months ago, was for “all documents held by the APSC that relate to the APSC produced document for the IPA.”

That includes not only all duplicates and drafts, but file notes, instant messages (lync, whatsapp or other), text messages, voice mail messages, emails, meeting agendas, meeting minutes, meeting notes, marked-up edits and comments (with authors/editors identified), memos, post it notes and audit details of active events against relevant documents held in workflow/HPRM /TRIM (demonstrating which APSC staff members accessed, created and modified relevant documents and the changes they may have made and when) that in any way relate to the APSC produced document for the IPA (whether it be the genesis and preparation of that document, its use, its audience, its recipients (including all third party recipients), its contents, decisions made in respect of the doucment, its distribution or otherwise).

I do not agree to any reduction in scope of the documents the subject of my request.

The APSC’s General Counsel, in recognition of the public interest in these matters, has entered into a binding agreement on behalf of the APSC to waive any charges in relation to my request.

To process my request in accordance with the requirements of the FOI Act and the Public Service Act 1999, the APSC will need to conduct detailed and thorough searches of the APSC’s document management systems but also the document holdings of every APSC staff member, current and former, who had any involvement, even if only peripherally, in relation to the APSC produced document for the IPA. Relevant documents will be held by IPA affiliated APSC staff who were deeply involved in the matter (J Lloyd, M Spaccavento, C Page, C Kelly) but the APSC will also need to conduct thorough searches of the archived document holdings (maintained in accordance with the requirements of the Archives Act 1983) of APSC staff who had some involvement with the document but that have since left the APSC (eg. L Poole, S Foster).

I reject Ms Luck-Cameron’s spurious claim that releasing the names of the APSC staff members involved in this matter would be unreasonable including because that would expose those staff members to “public scrutiny”. That claim has been made for an improper purpose and runs contra not only to the requirements of subsections 10(4) and 13(1) of the Public Service Act 1999 but also the objects of the FOI Act, including Parliament’s intention expressed at paragraph 3(2)(b) of the FOI Act.

I require the names of each APSC officer involved with this matter including for the purposes of the Public Service Act 1999, the Public Governance, Performance and Accountability Act 2013, the Criminal Code Act 1995, the Public Interest Disclosure Act 2013 and the Legal Profession (Solicitors) Conduct Rules 2015. If APSC staff involved in this matter have complied with their legal and ethical obligations, they have nothing to fear.

Resolution of these matters is of wide public interest, not least because resolution will offer invaluable guidance to all APS staff as to what constitutes allowable conduct in respect of their relationships with, and the provision of information and services to, political lobby groups (while at work or otherwise). Resolution of these matters will also provide public servants with invaluable advice as to the extent of their obligations to behave in an apolitical and impartial manner. Clearly, the APSC is not in a position to adjudicate or otherwise resolve these matters in an apolitical, independent and objective manner.

Link to this

From: FOI
Australian Public Service Commission


Attachment Freedom of Information request APSC produced document for the IPA.txt
6K Download View as HTML


UNCLASSIFIED

Good afternoon Fliccy

 

Thank your for your email.

 

I note your original FOI request stated:

 

I request access to all documents held by the APSC that relate to the APSC
produced document for the IPA.

To narrow the scope of my request I am willing for it to relate only to
email documents (ie. emails and any attachments to those emails) and I am
willing for the APSC to disregard all but the last email in email
chains/threads (but only on the basis that the preceding emails in those
email chains will be included in the last email of those email chains). I
am also willing for the APSC to disregard any documents within the scope
of my request that have already been made available here:
[1]https://www.righttoknow.org.au/request/3...
(bold is APSC emphasis)

 

I note you have now sought to expand the scope of your request to include
access to instant messages (lync, whatsapp or other), text messages, voice
mail messages, emails, meeting agendas, meeting minutes, meeting notes,
marked-up edits and comments (with authors/editors identified), memos,
post it notes and audit details of active events against relevant
documents held in workflow/HPRM /TRIM (demonstrating which APSC staff
members accessed, created and modified relevant documents and the changes
they may have made and when) that in any way relate to the APSC produced
document for the IPA (whether it be the genesis and preparation of that
document, its use, its audience, its recipients (including all third party
recipients), its contents, decisions made in respect of the document, its
distribution or otherwise.

 

The APSC not agreed to the expansion of the scope of your request.  As
such, your request will be processed as per the original scope of your
request and as you have agreed, limited to email documents. 

 

Kind regards

FOI Coordinator

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building

Parkes Place West, Parkes ACT 2600

E: [email address]

 

Important: This e-mail is for the use of the intended recipients only and
may contain information that is confidential, commercially valuable and/or
subject to legal privilege. If you are not the intended recipient you are
notified that any review, re-transmission,

disclosure, dissemination or other use of, or taking any action in
reliance upon this information is prohibited. If you have received this
e-mail in error, please notify the sender immediately and delete all
electronic and hard copies of this transmission together with any
attachments.

 

 

 

 

 

show quoted sections

Link to this

From: Fliccy

Delivered

Dear FOI,

Thanks for that - right you are.

I'd like to make an FOI request for access to all documents held by the APSC that relate to the APSC produced document for the IPA. Those documents include, but are not limited to, instant messages (lync, whatsapp or other), text messages, voice mail messages, emails, meeting agendas, meeting minutes, meeting notes, marked-up edits and comments (with authors/editors identified), memos,
post it notes and audit details of active events against relevant documents held in workflow/HPRM /TRIM (demonstrating which APSC staff members accessed, created and modified relevant documents and the changes they may have made and when) that in any way relate to the APSC produced document for the IPA (whether it be the genesis and preparation of that document, its use, its audience, its recipients (including all third party recipients), its contents, decisions made in respect of the document, its distribution or otherwise.

Noting those documents will tend to demonstrate illegal activities engaged in by APSC staff and the Public Service Commissioner, there's a wide public interest in their production.

Thanks.

Link to this

From: FOI
Australian Public Service Commission

UNCLASSIFIED

FOI Reference:  C18/1032

 

Dear Fliccy

Acknowledgement of FOI request

 

The Australian Public Service Commission (the Commission) acknowledges
receipt of your request under the Freedom of Information Act 1982 (Cth)
(FOI Act), seeking access to the following documents:

 

‘…that relate to the APSC produced document for the IPA. Those documents
include, but are not limited to, instant messages (lync, whatsapp or
other), text messages, voice mail messages, emails, meeting agendas,
meeting minutes, meeting notes, marked-up edits and comments (with
authors/editors identified), memos, post it notes and audit details of
active events against relevant documents held in workflow/HPRM /TRIM
(demonstrating which APSC staff members accessed, created and modified
relevant documents and the changes they may have made and when) that in
any way relate to the APSC produced document for the IPA (whether it be
the genesis and preparation of that document, its use, its audience, its
recipients (including all third party recipients), its contents, decisions
made in respect of the document, its distribution or otherwise…’

 

The statutory timeframe for responding to your request under the FOI Act
is 30 days from the date of receipt.  This timeframe may be extended in
certain circumstances, and we will advise you if such circumstances arise,
or if there is a need to conduct formal consultation with affected third
parties.  Such consultation may also extend the processing time in
accordance with sections 27 and 27A [Consultation – business documents and
personal privacy] of the FOI Act.

 

Please note, section 22 of the FOI Act allows agencies to exclude or
redact certain information from a request if it is deemed to be irrelevant
to the scope of the request.  The Commission’s policy is to exclude the
personal details of the Commissions or APSC officers, such as names,
signatures, direct phone and mobile numbers contained in documents that
fall within the scope of an FOI request, unless you specifically request
access to such details.  The Commission’s policy is also to exclude
duplicates of documents, and documents sent to, or received from you, as
the FOI applicant unless you specifically request that duplicate documents
be provided to you. 

 

Should you have any questions relating to your request, please do not
hesitate to contact our office via email to [email address]

 

Kind regards,

 

 

FOI Officer

Legal Services

 

Australian Public Service Commission

Treasury Building, Parkes Place West, Parkes ACT 2600

GPO Box 3176, Canberra ACT 2601

Email:  [email address]

 

 

show quoted sections

Link to this

From: Fliccy

Delivered

Dear FOI,

Your email dated 24 May 2018 says “The Commission’s policy is to exclude the personal details of the Commissions or APSC officers, such as names, signatures, direct phone and mobile numbers contained in documents that fall within the scope of an FOI request, unless you specifically request access to such details”

That’s a policy that has no basis in law as well as being a policy that is precisely the opposite to that espoused by the Information Commissioner in the FOI Guidelines made under s.93A of the FOI Act.

As I’ve previously indicated, I require the names of each APSC officer involved with this matter including for the purposes of the Public Service Act 1999, the Public Governance, Performance and Accountability Act 2013, the Criminal Code Act 1995, the Public Interest Disclosure Act 2013 and the Legal Profession (Solicitors) Conduct Rules 2015. If APSC staff involved in this matter have complied with their legal and ethical obligations, they have nothing to fear.

Link to this

From: Fliccy

Delivered

Dear FOI,

On 1 May 2018, the APSC wrote to me to indicate that for my FOI request made on 2 November 2017, "[t]he statutory due date for you to receive a decision will fall due on 6 June 2018". What happened?

Link to this

From: FOI
Australian Public Service Commission


Attachment Decision.pdf
230K Download View as HTML


UNCLASSIFIED
FOI Reference: C17/2088

Good afternoon Fliccy

Please find attached correspondence relating to your FOI request.

Regards

FOI Coordinator
Legal Services

Australian Public Service Commission
Level 4, B Block, Treasury Building
Parkes Place West, Parkes ACT 2600
E: [email address]

Important: This e-mail is for the use of the intended recipients only and may contain information that is confidential, commercially valuable and/or subject to legal privilege. If you are not the intended recipient you are notified that any review, re-transmission,
disclosure, dissemination or other use of, or taking any action in reliance upon this information is prohibited. If you have received this e-mail in error, please notify the sender immediately and delete all electronic and hard copies of this transmission together with any attachments.

show quoted sections

Link to this

From: FOI
Australian Public Service Commission


Attachment Signed decision.pdf
2.4M Download View as HTML


UNCLASSIFIED
Good afternoon ‘Fliccy’

Please find attached correspondence relevant to your FOI request lodged on 23 May 2018 as detailed below.

Regards

FOI Coordinator
Legal Services

Australian Public Service Commission
Level 4, B Block, Treasury Building
Parkes Place West, Parkes ACT 2600
E: [email address]

Important: This e-mail is for the use of the intended recipients only and may contain information that is confidential, commercially valuable and/or subject to legal privilege. If you are not the intended recipient you are notified that any review, re-transmission,
disclosure, dissemination or other use of, or taking any action in reliance upon this information is prohibited. If you have received this e-mail in error, please notify the sender immediately and delete all electronic and hard copies of this transmission together with any attachments.

show quoted sections

Link to this

From: Fliccy

Delivered

Dear FOI,

Pursuant to section 54 of the Freedom of Information Act 1982 (the FOI Act), I seek internal review of Marco Spaccavento’s decision of 7 June 2018 to refuse access to the documents the subject of my request made under the FOI Act on 2 November 2017.

My request made under the FOI Act on 2 November 2017 concerned:
“[…] a 13 page document by APSC staff (titled “Examples of ‘soft’ arrangements in Commonwealth enterprise agreements” (the “APSC produced document for the IPA”) beginning at page 16 of this document https://www.righttoknow.org.au/request/3... for the use and benefit of far right wing political extremist group, the Institute of Public Affairs (the ‘IPA’) – a political group for which the current Public Service Commissioner is a contributing member, and former director.”

Specifically, I sought access to:
“[…] all documents held by the APSC that relate to the APSC produced document for the IPA.”

On 7 June 2018, Marco Spaccavento, being the Group Manager of the APSC team that prepared “the APSC produced document for the IPA”, refused access to the documents the subject of my request on the basis that the APSC produced document for the IPA:
“[…] was not “prepared for the IPA” ” – just that the IPA happened to be the only recipient of that document and therefore, according to Mr Spaccavento, no related documents exist.

My submissions in support of my application for internal review of Mr Spaccavento’s access refusal decision are as follows.

[1] My FOI request of 2 November 2017 sought copies of all documents held by the APSC that relate to ““[…] a 13 page document [prepared] by APSC staff (titled “Examples of ‘soft’ arrangements in Commonwealth enterprise agreements” […] beginning at page 16 of this document https://www.righttoknow.org.au/request/3...

[2] To simplify my request, I abbreviated reference to the “13 page document [prepared] by APSC staff (titled “Examples of ‘soft’ arrangements in Commonwealth enterprise agreements” […] beginning at page 16 of this document https://www.righttoknow.org.au/request/3... by referring to it, for the purposes of my FOI request, as the “APSC produced document for the IPA”.

[3] The use of abbreviated references is a commonly used and understood literary technique. Mr Spaccavento is aware of this, not least because Mr Spaccavento uses the same literary technique in the work that he does for the Institute of Public Affairs (or, using an abbreviated reference, “the IPA”) while as a Commonwealth public servant. See, for example, Mr Spaccavento’s email to his colleagues at the IPA at page 5 of the document here: https://www.righttoknow.org.au/request/3... .

[4] An abbreviated reference need not necessarily bear any relationship to the document, entity or thing to which it refers. For example, one might abbreviate reference to the “13 page document [prepared] by APSC staff (titled “Examples of ‘soft’ arrangements in Commonwealth enterprise agreements” […] beginning at page 16 of this document https://www.righttoknow.org.au/request/3... by referring to it as: i) “document(s) indicating Marco Spaccavento was given advance notice of questions to be asked by Government senators at Senate Estimates”; or ii) “document(s) indicating the Marco Spaccavento has given misleading information to the FWC” - but those abbreviated references would still be references to the “13 page document [prepared] by APSC staff (titled “Examples of ‘soft’ arrangements in Commonwealth enterprise agreements” […] beginning at page 16 of this document https://www.righttoknow.org.au/request/3....

[5] In the same way, even if it were true, as Marco Spaccavento asserts, that the APSC produced document for the IPA, “[…] was not “prepared for the IPA” ”, the abbreviated reference of “the APSC produced document for the IPA” remains a reference to the “13 page document [prepared] by APSC staff (titled “Examples of ‘soft’ arrangements in Commonwealth enterprise agreements” […] beginning at page 16 of this document https://www.righttoknow.org.au/request/3.... In any case, regardless of whether the APSC produced document for the IPA, was or wasn’t initially prepared for the IPA, it is not in dispute that the document was prepared by the APSC, and provided to the IPA, to advance the political agenda of the IPA – and so it is accurate to refer to the document as “the APSC produced document for the IPA”.

[6] Accordingly, I am of the view that Mr Spaccavento’s decision to refuse access to the documents the subject of my request has been incorrectly and dishonestly made:
i) for purposes that run contra to the objects of the FOI Act,
ii) for the purpose of hindering scrutiny of the unethical and illegal practices of senior APSC staff; and
iii) in contravention of Mr Spaccavento’s legal obligations to: i) behave honestly and with integrity (s.13(1) of the Public Service Act 1999), ii) (noting Mr Sppaccavento’s involvement in the preparation of the APSC produced document for the IPA and Mr Spaccavento’s affiliation with the IPA), take steps to manage his conflict of interest in making a decision on this matter (s.13(7) of the Public Service Act 1999); iii) to behave in a way that upholds the APS Values (s.13(11) of the Public Service Act 1999) and, iv) by personal example, behave in a manner that promotes the APS Values and APS Code of Conduct (s.35(3)(c) of the Public Service Act 1999).

[7] But the APSC’s internal reviewer need not solely rely on my interpretation – he/she can simply look at how my FOI request was interpreted by other APSC staff.

[8] Upon receipt of my request, the APSC’s then Acting General Counsel, on 15/11/17 responded to it by stating that I am “liable to pay a charge for the processing of [my FOI] request” and that the APSC’s then Acting General Counsel preliminary assessment of that charge was $233.77 constituted of $77.50 for the search, retrieval and production of the relevant documents and $156.27 for decision-making time in respect of those relevant documents.

[9] But, if as Marco Spaccavento asserts, there are no relevant documents, why did the APSC’s then Acting General Counsel decide to impose a processing charge of $233.77 (being representative of the apparent costs of searching, retrieving, producing and deciding upon relevant documents) in respect of my request for documents?

[10] When I wrote to the APSC to request that the $233.77 processing charge not be imposed because access to the documents is in the general public interest, on 12/1/18, the APSC’s Director, Integrity declined my request and affirmed the $233.77 preliminary charges decision including by stating:
• “[h]aving consulted with the relevant line areas and reviewed certain documents falling within the scope of your request [...]”;
• “I consider that disclosure of the documents sought, being emails relating to the [APSC produced document for the IPA] is not in the general public interest or of interest to a substantial section of the public. This is because the documents you are seeking were created three years' ago and in my view, release of the same do not meet the objectives of the FOI Act.”
• “I have also taken into consideration the cost to the Commission in processing your FOI request, noting that the processing charges do not compensate the actual costs associated with the processing of your request. The true processing time for your request is longer than the total time considered for the purposes of determining the preliminary assessment of charges.”
• “I have independently considered the calculation of the preliminary charges assessment, and I am satisfied that the estimated charge is valid, based on discussions with the relevant line area and my own knowledge of the time required to undertake third party consultations, and to draft and settle a decision.”

[11] In the APSC’s Director, Integrity’s own words, she has identified “certain documents falling within the scope of [my] request”. But, if as Marco Spaccavento asserts, there are no relevant documents, why did the APSC’s Director, Integrity decide to affirm a decision to impose a processing charge of $233.77 (being representative of the apparent costs of searching, retrieving, producing and deciding upon relevant documents) in respect of my request for documents? And how can it possibly be that the APSC’s Director, Integrity’s decision to affirm a decision to impose a charge for processing documents (when apparently there are none) complies with the legal obligations imposed on the APSC’s Director, Integrity by way of subsections 13(1) (act with honestly and integrity), 13(2) (act with care and diligence), 13(4) (comply with all applicable laws), and 13(11) (behave in a way that upholds the APS Values and the integrity and good reputation of the APS) of the Public Service Act 1999? If, as Marco Spaccavento asserts, there are no relevant documents, then the APSC’s Director, Integrity’s decision to affirm the charge must surely constitute disclosable conduct for the purposes of the Public Interest Disclosure Act 2013.

[12] In March 2018, the APSC’s General Counsel, in recognition of the public interest in the documents the subject of my request, entered into a binding agreement on behalf of the APSC, with the OAIC and myself, to waive any charges in relation to my request.

[13] On 1 May 2018, the APSC’s General Counsel wrote to me stating “It has been determined following assessment of the documents [that fall within the scope of my request] that it is necessary for the Commission to conduct formal consultation with affected third parties as required by sections 27 and or 27A of the FOI Act.”

[14] But if, as Marco Spaccavento asserts, there are no relevant documents, why did the APSC’s General Counsel indicate to me that she had identified documents falling within the scope of my request and that she had to consult with third parties identified in those documents? And if, as Marco Spaccavento asserts, there are no relevant documents, did the APSC’s General Counsel really consult with any third parties, and if so, who? If, as Marco Spaccavento asserts, there are no relevant documents, then how can it possibly be that the APSC’s General Counsel’s decision to consult with third parties apparently identified in documents that Marco Spaccavento contends don’t exist, complies with the legal obligations imposed on the APSC’s General Counsel by way of subsections 13(1) (act with honestly and integrity), 13(2) (act with care and diligence), 13(4) (comply with all applicable laws), 13(11) (behave in a way that upholds the APS Values and the integrity and good reputation of the APS) of the Public Service Act 1999, and section 5 of the Legal Profession (Solicitors) Conduct Rules 2015 (regarding dishonest and disreputable conduct)? If, as Marco Spaccavento asserts, there are no relevant documents, then the APSC’s General Counsel’s decision to consult with third parties apparently identified in documents identified as falling within the scope of my request, must surely constitute disclosable conduct for the purposes of the Public Interest Disclosure Act 2013.

[15] On 17 May 2018, the APSC’s General Counsel wrote to me stating that: “The decision maker is currently assessing the documents relevant to your request and has determined that there are a number of duplicate documents. As such, are you agreeable for duplicates to be removed from the scope of the request? In addition there are a number of draft versions of the documents titled Examples of 'soft' arrangements in Commonwealth Enterprise agreements. To limit the number of pages and number of documents you receive, are you agreeable to being provided with the final version of those documents, or do you require all draft versions of those documents?”

[16] But if, as Marco Spaccavento asserts, there are no relevant documents, why did the APSC’s General Counsel indicate to me that not only had she identified documents “relevant to [my] request”, but that there were draft and duplicate versions of documents that fell within the scope of my request? And if, as Marco Spaccavento asserts, there are no relevant documents, then how can the APSC’s General Counsel’s act of notifying me to indicate that she had identified documents “relevant to [my] request” (and that there were duplicate and draft versions of those documents) be reconciled with the legal obligations imposed on her by way of subsections 13(1) (act with honestly and integrity), 13(2) (act with care and diligence), 13(4) (comply with all applicable laws), 13(11) (behave in a way that upholds the APS Values and the integrity and good reputation of the APS) of the Public Service Act 1999, and section 5 of the Legal Profession (Solicitors) Conduct Rules 2015 (regarding dishonest and disreputable conduct)? If, as Marco Spaccavento asserts, there are no relevant documents, then the APSC’s General Counsel’s statements indicating that she had identified documents “relevant to [my] request” and that there were draft and duplicate versions of documents that fell within the scope of my request, must surely constitute disclosable conduct for the purposes of the Public Interest Disclosure Act 2013.

For the reasons set out above, I contend that Marco Spaccavento’s decision of 7 June 2018, to refuse access to the documents the subject of my request was improperly, dishonestly and unethically made.

Link to this

From: FOI
Australian Public Service Commission

UNCLASSIFIED

Good morning Fliccy,

 

                                             Acknowledgement of
Application for internal review

 

The Australian Public Service Commission (the Commission) acknowledges
receipt on 6 July 2018, of your application under section 54B [Internal
review-application for review] of the Freedom of Information Act 1982
(Cth) (FOI Act), for an internal review of the decision by Marco
Spaccavento dated 7 June 2018 in relation to:

 

               ‘…I request access to all documents held by the APSC that
relate to the APSC produced document for the IPA.

To narrow the scope of my request I am willing for it to relate only to
email documents (ie. emails and any attachments to those emails) and I am
willing for the APSC to disregard all but the last email in email
chains/threads (but only on the basis that the preceding emails in those
email chains will be included in the last email of those email chains). I
am also willing for the APSC to disregard any documents within the scope
of my request that have already been made available here:
https://www.righttoknow.org.au/request/3...

 

The statutory timeframe for responding to your internal review under the
FOI Act is 30 days from the date of receipt your application.

Should you have any questions relating to your request, please do not
hesitate to contact our office via email to [1][email address] .

 

 

Kind regards,

 

FOI Officer

Legal Services

 

Australian Public Service Commission

Treasury Building, Parkes Place West, Parkes ACT 2600

GPO Box 3176, Canberra ACT 2601

Email:  [2][email address]

 

show quoted sections

Link to this

From: FOI
Australian Public Service Commission


Attachment Internal review of Freedom of Information request APSC produced document for the IPA.txt
15K Download View as HTML


For Official Use Only

FOI Reference:  C18/1260

 

Good afternoon ‘Fliccy’

 

Thank you for your email of 6 July 2018 (attached) seeking an internal
review of the Commission’s decision of 7 June 2018.

External Review

The Commission as with most Commonwealth agencies, holds a schedule of
delegations and authorisations, signed by the Commissioner, delegating
powers to make decisions, as required by section 23 of the Freedom of
Information Act 1982 (FOI Act).

 

In accordance with those delegations and the process for appointing a
decision maker to make a fresh decision on your application for internal
review, an internal review decision would normally be undertaken by the
Deputy Commissioner who is a Senior Executive Service (SES) Band 3
Officer.  Further, an officer at the same level as the original decision
maker could make a decision on your internal review application. However,
there are only a limited number of SES Officers in the Commission who hold
the delegation to make a decision on your review application.

 

The Deputy Commissioner was involved in discussions about your original
FOI request and decision, and has already formed certain views about your
request.  These views are known to the other (subordinate) SES employees
who could consider your application for internal review.  Consequently, an
apprehension of bias may exist with respect to any SES Officer who decides
or considers your application for internal review.  Similarly, although
the Commissioner could generally consider a request for internal review
himself, the subject matter of this request may cause an apprehension of
bias on his part.  It seems likely that that the available decision
makers, including the Commissioner, would need to recuse themselves from
considering your request for internal review  to avoid any apprehension of
bias.

 

As the FOI Coordinator, I have discussed both your original FOI request
and decision, and also your internal review application with the Deputy
Commissioner, and other SES Officers in the Commission.  As such, it has
been identified that as any relevant SES Officers who hold a delegation to
make a high level internal review decision, would have an apprehension of
bias, if they were to make a decision on your internal review.

To avoid apprehended bias - Deemed affirmation of original decision

In accordance with 54D [deemed affirmation of original decision] of the
FOI Act, an agency is required to make a decision on internal review,
within 30 days of the day the application for internal review was received
by the agency. 

 

As there are no suitable decision makers free from any apprehension of
bias, it is unlikely that a decision will be made within 30 days of your
application for review.  Consequently, a deemed affirmation of the
decision on your original request will arise.  The purpose of notifying
you of this is to allow you to expedite this matter by seeking an external
review instead.

The Commission is of the view that in order to avoid any apprehended bias,
the original decision be affirmed.  This means that your review can then
progress to external review through the Office of the Information
Commissioner (OAIC).  This process could occur after 4 August 2018, being
the date in which your internal review decision falls due.

Expedite to external review
However, if you wish to expedite this matter, you may wish to consider
lodging an application for external review of your FOI decision with the
(OAIC) who may conduct an independent review of your decision. 

 

Part VII of the FOI Act provides that an applicant may proceed to the OAIC
for an external review of an Agency’s decision.  Further information on
the process for lodging an Information Commissioner (IC) Review is
available at
[1]https://www.oaic.gov.au/freedom-of-infor...

 

The FOI Act also provides that you may lodge an external review within 60
days of receiving your FOI access refusal decision.  In addition, if you
find that you would like further time to lodge an application for IC
Review, section 54T of the FOI Act also provides that the Information
Commissioner may allow additional time for you to make an IC review if
further time is required.

 

In the interests of allowing you an opportunity for a fair and reasonable
decision, free from any apprehended bias, please advise if you wish to
lodge an application for review with the OAIC? 

 

Alternatively, if we do not hear from you by 4^th August 2018, being the
date in which your decision falls due, we will assume that you will
proceed to the OAIC for review.

 

Clarification of roles of the General Counsel and the FOI Coordinator

I note that you have provided comments in your application for internal
review, regarding communications received by the APSC’s General Counsel.

 

Please note that the role of General Counsel is not the same role as that
of the FOI Coordinator and these roles are undertaken by different staff
within the APSC.  The role of FOI Coordinator and or FOI Officer, does not
require that the occupant hold a law degree.  Currently, and for the
purposes of correspondence in relation to your original FOI decision, the
holder of this position does not hold a law degree, and is not required to
do so.  Where you have noted that the APSC’s General Counsel has issued
either decisions or correspondence relevant to your FOI request or
decision, these decisions or correspondence would have been written or
sent by the FOI Coordinator, unless it is expressly stated to have been
decided, sent by or from, the General Counsel or acting General Counsel.

 

Legislation

If you require further information on the operation of the FOI Act, a copy
of the legislation is available from
[2]https://www.legislation.gov.au/Details/C...

 

Regards

 

 

FOI Coordinator

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building

Parkes Place West, Parkes ACT 2600

E: [3][email address]

 

Important: This e-mail is for the use of the intended recipients only and
may contain information that is confidential, commercially valuable and/or
subject to legal privilege. If you are not the intended recipient you are
notified that any review, re-transmission,

disclosure, dissemination or other use of, or taking any action in
reliance upon this information is prohibited. If you have received this
e-mail in error, please notify the sender immediately and delete all
electronic and hard copies of this transmission together with any
attachments.

 

Important: This email remains the property of the Commonwealth and is
subject to the jurisdiction of section 70 of the Crimes Act 1914. It may
contain confidential or legally privileged information. If you think it
was sent to you by mistake, please delete all copies and advise the
sender.

References

Visible links
1. https://www.oaic.gov.au/freedom-of-infor...
2. https://www.legislation.gov.au/Details/C...
3. mailto:[email address]

Link to this

From: Fliccy

Delivered

Dear FOI,

Thank you for your email. Given that the APSC has more than two weeks to resolve this matter, including by engaging a person to conduct the internal review, I’ll wait to take any further action until after 4 August.

Thank you also for clarifying the identities of the decision-makers for this request. In the same vein, could you please provide me with the names of the officers responsible for making the following decisions:

i) decision of 15/11/17 to impose a charge of $233.77;
ii) decision of 1/5/18 to consult with third parties per ss.27 and 27A; and
iii) decision of 17/5/18 to consult with me to determine whether I was agreeable to the removal of duplicate and draft versions of documents that fell within the scope of my request.

Thanks.

Link to this

From: FOI
Australian Public Service Commission

For Official Use Only

For Official Use Only

Hi Jo,

 

See email below from Fliccy.  As I suspected, Fliccy has asked for the
identity of the officers who made these decisions. 

 

While normally I would be more than happy to provide details of my name, I
am cognisant that the applicant is persistent in seeking access to FOI
decision makers and officers names.  Therefore, in this case, and noting
that the applicant is using a pseudonym through Right to Know, I would
recommend that I only provide the position title of the officer and not
their name.  (See answers in response below in red), or we not respond at
all.

 

Further, Fliccy has agreed to wait until after 4 August 2018 for the
internal review deemed decision. [interesting]

 

 

Kind regards

Karen

 

 

Karen Tulloch    l    FOI Coordinator

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building

Parkes Place West, Parkes ACT 2600

P: 02 6202 3707    l    E: [email address]

 

NB: I work from Monday to Thursdays.

 

Important: This e-mail is for the use of the intended recipients only and
may contain information that is confidential, commercially valuable and/or
subject to legal privilege. If you are not the intended recipient you are
notified that any review, re-transmission,

disclosure, dissemination or other use of, or taking any action in
reliance upon this information is prohibited. If you have received this
e-mail in error, please notify the sender immediately and delete all
electronic and hard copies of this transmission together with any
attachments.

 

Dear FOI,

 

Thank you for your email. Given that the APSC has more than two weeks to
resolve this matter, including by engaging a person to conduct the
internal review, I’ll wait to take any further action until after 4
August.

 

Thank you also for clarifying the identities of the decision-makers for
this request. In the same vein, could you please provide me with the names
of the officers responsible for making the following decisions:

 

i)            decision of 15/11/17 to impose a charge of $233.77;  
[Preliminary charge notice decision made by Acting General Counsel]      
 

ii)           decision of 1/5/18 to consult with third parties per ss.27
and 27A; and [Notice to consult decision made by FOI Coordinator]

iii)          decision of 17/5/18 to consult with me to determine whether
I was agreeable to the removal of duplicate and draft versions of
documents that fell within the scope of my request. [FOI     Coordinator]

 

Thanks.

 

show quoted sections

Link to this

From: FOI
Australian Public Service Commission

FOI would like to recall the message, "Internal Review application C18/1260 - s54D - Deemed [DLM=For-Official-Use-Only]".
Important: This email remains the property of the Commonwealth and is subject to the jurisdiction of section 70 of the Crimes Act 1914. It may contain confidential or legally privileged information. If you think it was sent to you by mistake, please delete all copies and advise the sender.

Link to this

From: FOI
Australian Public Service Commission

For Official Use Only
Dear Fliccy

I refer to your email of 17 July 2018 requesting the identity of the individuals who made the following decisions:

i) decision of 15/11/17 to impose a charge of $233.77;
ii) decision of 1/5/18 to consult with third parties per ss.27 and 27A; and
iii) decision of 17/5/18 to consult with me to determine whether I was agreeable to the removal of duplicate and draft versions of documents that fell within the scope of my request

The first of these decisions was made by the then Acting General Counsel, (Susannah).

The second and third decisions were made by the FOI Coordinator (Karen). I am the FOI Coordinator.

The Commission’s policy in respect of FOI practice is generally to not disclose the names of employees below Senior Executive Service (SES) level. Where names are specifically requested under the FOI Act, disclosure is considered in the usual manner under the FOI Act. Namely, consideration is given to whether the names of employees are exempt from disclosure.

In respect of FOI decision makers in particular, section 26 of the FOI Act requires the name and designation of a decision maker to be given where a decision is made relating to a refusal to grant access to a document or deferring provision of access to a document (s 21). However, the FOI Act does not require the disclosure of an employee’s or decision makers details in respect of decisions to impose a charge, to consult with third parties or to consult with FOI applicants.

In this case, we have agreed to provide you with the details of the former Acting General Counsel and you already have my details as the FOI Coordinator.

Please note that my previous response to your message of 17 July 2018 was inadvertently sent in response when it was, in fact, intended to be forwarded to my supervisor. I apologise for any confusion this may have caused.

Regards

FOI Coordinator
Legal Services

Australian Public Service Commission
Level 4, B Block, Treasury Building
Parkes Place West, Parkes ACT 2600
E: [email address]

Important: This e-mail is for the use of the intended recipients only and may contain information that is confidential, commercially valuable and/or subject to legal privilege. If you are not the intended recipient you are notified that any review, re-transmission,
disclosure, dissemination or other use of, or taking any action in reliance upon this information is prohibited. If you have received this e-mail in error, please notify the sender immediately and delete all electronic and hard copies of this transmission together with any attachments.

show quoted sections

Link to this

From: Fliccy

Delivered

Dear FOI,

Pursuant to section 54 of the Freedom of Information Act 1982 (the FOI Act), I seek internal review of Marco Spaccavento’s decision of 21 June 2018 to refuse access to the documents the subject of my request made under the FOI Act on 23 May 2018.

My submissions in support of my application for internal review of Mr Spaccavento’s access refusal decision of 21 June 2018 are the same as those set out in my application for internal review of Mr Spaccavento’s access refusal decision of 7 June 2018 (APSC ref: C17/2088) as provided by email to the APSC on 6 July 2018.

Thank you.

Link to this

From: FOI
Australian Public Service Commission

UNCLASSIFIED

FOI Reference:  C18/1032

 

Good afternoon Fliccy,

 

                                             Acknowledgement of
application for internal review

 

The Australian Public Service Commission (the Commission) acknowledges
receipt on 22 July 2018, of your application under section 54B [Internal
review-application for review] of the Freedom of Information Act 1982
(Cth) (FOI Act), for an internal review of the decision by Marco
Spaccavento, dated 21 June 2018 in relation to:

 

‘I'd like to make an FOI request for access to all documents held by the
APSC that relate to the APSC produced document for the IPA. Those
documents include, but are not limited to, instant messages (lync,
whatsapp or other), text messages, voice mail messages, emails, meeting
agendas, meeting minutes, meeting notes, marked-up edits and comments
(with authors/editors identified), memos, post it notes and audit details
of active events against relevant documents held in workflow/HPRM /TRIM
{demonstrating which APSC staff members accessed, created and modified
relevant documents and the changes they may have made and when) that in
any way relate to the APSC produced document for the IPA (whether it be
the genesis and preparation of that document, its use, its audience, its
recipients (including all third party recipients), its contents, decisions
made in respect of the document, its distribution or otherwise.

 

The statutory timeframe for responding to your internal review under the
FOI Act is 30 days from the date of receipt of your review application.

Should you have any questions relating to your request, please do not
hesitate to contact our office via email to [1][email address]

 

Regards

 

 

FOI Coordinator

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building

Parkes Place West, Parkes ACT 2600

E: [2][email address]

 

Important: This e-mail is for the use of the intended recipients only and
may contain information that is confidential, commercially valuable and/or
subject to legal privilege. If you are not the intended recipient you are
notified that any review, re-transmission,

disclosure, dissemination or other use of, or taking any action in
reliance upon this information is prohibited. If you have received this
e-mail in error, please notify the sender immediately and delete all
electronic and hard copies of this transmission together with any
attachments.

 

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From: FOI
Australian Public Service Commission


Attachment Internal review of Freedom of Information request APSC produced document for the IPA.txt
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UNCLASSIFIED

FOI Reference:  C18/1317

 

Good morning FOI Applicant ‘Fliccy’

 

Thank you for your email of 22 July 2018 (attached) seeking an internal
review of the Commission’s decision of 21 June 2018.

External Review

The Commission along with most Commonwealth agencies, holds a schedule of
delegations and authorisations, signed by the agency head, (Commissioner),
delegating powers to make FOI decisions, as provided by section 23 of the
Freedom of Information Act 1982 (FOI Act).

 

In accordance with those delegations and the process for appointing a
decision maker to make a fresh decision on your application for internal
review, internal review decisions are usually undertaken by the Deputy
Commissioner in the APSC, who is a Senior Executive Service (SES) Band 3
Officer.  Also, an officer at the same level as the original decision
maker (SES Band 1) could also make a decision on your internal review
application.  However, there are a limited number of SES Officers in the
Commission who hold the necessary delegation to make a decision on your
review application.

 

The Deputy Commissioner has been involved in discussions about your
original FOI request and subsequent decision.  The Deputy Commissioner has
also formed certain views about your requests.  These views are known to
and have been discussed with other (subordinate) SES officers in the
Commission, who could consider your application for internal review. 
Consequently, there could be a perceived apprehension of bias which may
exist with respect to any SES Officer making a decision or considering
your application for internal review.  Similarly, although the
Commissioner could generally consider an application for internal review
himself, the subject matter of this request may also result in a perceived
apprehension of bias on his part.  It seems likely that the available SES
decision makers, including the Commissioner, would need to recuse
themselves from considering your application for internal review  to avoid
any perceived apprehension of bias.

 

As the FOI Coordinator, I have discussed both your original FOI requests
and decision, and also your internal review applications with the Deputy
Commissioner, and other SES Officers in the Commission.  As such, it has
been identified that as any relevant SES Officers who hold a delegation to
make a high level internal review decision, would have a perceived
apprehension of bias, if they were to make a decision on your internal
review.

To avoid perception of apprehended bias - Deemed affirmation of original
decision

In accordance with 54D [deemed affirmation of original decision] of the
FOI Act, an agency is required to make a decision on internal review,
within 30 days of the day the application for internal review was received
by the agency. 

 

As there are no suitable decision makers free from a perceived
apprehension of bias, it is unlikely that a decision will be made within
30 days of your application for review.  Consequently, a deemed
affirmation of the decision on your original request will arise.  The
purpose of notifying you of this perceived bias, is to allow you an
opportunity to expedite the matter by seeking an external review instead. 
The Commission is of the view that in order to avoid any perceived bias,
the original decision must be affirmed.  This means that your review may
then progress to external review through the Office of the Information
Commissioner (OAIC).  This process could occur after 20 August 2018, (due
date of internal review decision) or at any time you choose to lodge an
application with the OAIC.  In other words an applicant may lodge both an
internal review and an external review simultaneously if desired. 

 

Expedite to external review
However, if you wish to expedite this matter, you may lodge a simultaneous
application for external review of your FOI decision through the (OAIC)
who may conduct an independent review.

 

Part VII of the FOI Act provides that an applicant may proceed to the OAIC
for an external review of an Agency’s decision.  Further information on
the process for lodging an Information Commissioner (IC) Review is
available at
[1]https://www.oaic.gov.au/freedom-of-infor...

 

The FOI Act also provides that you may lodge an external review within 60
days of receiving your FOI access refusal decision.  In addition, if you
find that you would like further time to lodge an application for IC
Review, section 54T of the FOI Act also provides that the Information
Commissioner may allow additional time for you to make an IC review if
further time is required.

 

In the even that we do not hear from you by 20^th August 2018, being the
date which your decision falls due, we will assume that you will either
proceed to the OAIC for external review or that you do not wish to
exercise your review rights, and the matter will be deemed withdrawn.

 

Clarification of roles of the General Counsel and the FOI Coordinator

I note that you have provided comments in your application for internal
review, regarding communications received by the APSC’s General Counsel.

 

Please note that the role of General Counsel is not the same role as that
of the FOI Coordinator and these roles are undertaken by different staff
within the APSC.  The role of FOI Coordinator and or FOI Officer, does not
require that the occupant hold a law degree.  Currently, and for the
purposes of correspondence in relation to your original FOI decision, the
holder of this position does not hold a law degree, and is not required to
do so.  Where you have noted that the APSC’s General Counsel has issued
either decisions or correspondence relevant to your FOI request or
decision, these decisions or correspondence would have been written or
sent by the FOI Coordinator, unless it is expressly stated to have been
decided, sent by or from, the General Counsel or acting General Counsel.

Legislation

If you require further information on the operation of the FOI Act, a copy
of the legislation is available from
[2]https://www.legislation.gov.au/Details/C...

 

Regards

 

 

FOI Coordinator

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building

Parkes Place West, Parkes ACT 2600

E: [3][email address]

 

Important: This e-mail is for the use of the intended recipients only and
may contain information that is confidential, commercially valuable and/or
subject to legal privilege. If you are not the intended recipient you are
notified that any review, re-transmission,

disclosure, dissemination or other use of, or taking any action in
reliance upon this information is prohibited. If you have received this
e-mail in error, please notify the sender immediately and delete all
electronic and hard copies of this transmission together with any
attachments.

 

Important: This email remains the property of the Commonwealth and is
subject to the jurisdiction of section 70 of the Crimes Act 1914. It may
contain confidential or legally privileged information. If you think it
was sent to you by mistake, please delete all copies and advise the
sender.

References

Visible links
1. https://www.oaic.gov.au/freedom-of-infor...
2. https://www.legislation.gov.au/Details/C...
3. mailto:[email address]

Link to this

From: Fliccy

Delivered

Dear FOI,

I refer to the APSC’s correspondence to me of 25 July 2018 in relation to my FOI request with APSC reference C18/1317.

That correspondence indicated that the APSC would not conduct an internal review of Mr Spaccavento’s access refusal decision given on 21 June 2018 because “there could be a perceived apprehension of bias which may exist with respect to any SES Officer making a decision or considering your application for internal review. Similarly, although the Commissioner could generally consider an application for internal review himself, the subject matter of this request may also result in a perceived apprehension of bias on his part. It seems likely that the available SES decision makers, including the Commissioner, would need to recuse themselves from considering your application for internal review to avoid any perceived apprehension of bias.”

I note that the conduct to which the documents the subject of my request relates has now been independently determined, by the Merit Protection Commissioner, to constitute illegal conduct.

I assume that the new Public Service Commissioner, Mr Peter Woolcott AO, had no involvement in the illegal conduct related to my request. As such, Mr Woolcott could not be said to have any perceived apprehension of bias in relation the conduct of an internal review of Mr Spaccavento’s decision of 21 June 2018 to refuse access to the documents the subject of my request made under the FOI Act on 23 May 2018.

Accordingly, I request that, under section 54C of the FOI Act, Mr Woolcott conduct an internal review of Mr Spaccavento’s access refusal decision. Noting the due date for such a decision is 20 August 2018, I am prepared to grant a 14 day extension for this review to be conducted.

Thanks.

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From: Fliccy

Delivered

Dear FOI,

I refer to my request made of the APSC of 10 August 2018, that Mr Peter Woolcott AO, review Mr Spaccavento’s decision of 21 June 2018 to refuse access to the documents the subject of my request made under the FOI Act on 23 May 2018.

Noting that the due date for that internal review decision is 20 August 2018, I would appreciate a response to that request. Could you please advise me as to whether the APSC will be conducting an internal review of Mr Spaccavento’s access refusal decision of 21 June 2018 pursuant to my request for such a review to be conducted as made on 22 July 2018.

Thanks

Link to this

From: FOI
Australian Public Service Commission

UNCLASSIFIED
Reference C18/1317
 
Good afternoon ‘Fliccy’
 
Thank you for your emails of 10 August 2018 and 17 August 2018, as
provided below.
 
I note you have requested Mr Peter Woolcott AO, Australian Public Service
Commissioner, conduct an internal review decision in accordance with
section 54 of the FOI Act.
 
I have considered your request and also had regard to the Information
Commissioners Guidelines issued under section 93A of the Freedom of
Information Act 1982 (FOI Act).  It is a requirement in accordance with
sections 15(5A) and 93A that Agencies must have regard to the Information
Commissioners Guidelines.
 
Paragraph 3.6 of the Guidelines provide that:
 
3.6 The public expects agencies and ministers to act fairly, transparently
and consistently in their administrative decision making and to be
accountable for the decisions they make. The quality of decisions under
the FOI Act is particularly important given the integral role freedom of
information requests can have in securing open government.
 
You will recall that the Commission wrote to you on 16 July 2018 in
relation to an earlier yet related FOI internal review decision (Reference
C18/1260).  In that email we advised that there may be a perceived
apprehended bias if the decision on internal review was made by Senior
Executive Service (SES) Officers in the Commission, and that if
dissatisfied, you may wish to consider lodging an external review with the
Office of the Australian Information Commissioner (OAIC).
 
Given that these two FOI requests and decisions are similar in nature and
context, we consider that it would be consistent and fair, for you to seek
external review through the OAIC, as part of their functions under Part
VII of the FOI Act.
 
The Commission remains of the view that the OAIC is best placed to review
the decision(s) if you are dissatisfied with the FOI decision(s). More
information about the IC Review process is available at
[1]https://www.oaic.gov.au/freedom-of-infor...
 
Regards
 
 
FOI Coordinator
Legal Services
 
Australian Public Service Commission
Level 4, B Block, Treasury Building
Parkes Place West, Parkes ACT 2600
E: [2][email address]
 
Important: This e-mail is for the use of the intended recipients only and
may contain information that is confidential, commercially valuable and/or
subject to legal privilege. If you are not the intended recipient you are
notified that any review, re-transmission,
disclosure, dissemination or other use of, or taking any action in
reliance upon this information is prohibited. If you have received this
e-mail in error, please notify the sender immediately and delete all
electronic and hard copies of this transmission together with any
attachments.
 

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