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

Briefs that the Secretary signed in October 2020

We're waiting for Julie to read a recent response and update the status.

Dear Department of Veterans' Affairs,

For the purposes of the Freedom of Information Act, I request copy of the following document/s, and any such discrete document does not exist but the official information does, I request the Department to produce a written document containing the information in discrete form by use of computer and other equipment to retrieve and collate the stored official information sought:

* A list of all briefs that were signed by the Secretary during October 2020; and

* Copy of the first page only of each brief signed by the Secretary during October 2020.

Severability: If one part of the scope is intended to be delayed by the Department, or made subject to consultation, but the other part can proceed, then the Department is to either give staged access to that part or treat the FOI as two separate requests made on 5 November.

Sincerely

Julie

INFORMATION.ACCESS, Department of Veterans' Affairs

** This is an automated response. Please do not reply to this email **

Thank you for contacting the Department of Veterans’ Affairs.

 

Your email has been received and will be actioned shortly.

 

National Information Access Processing

Department of Veterans’ Affairs

Phone: 1800 555 254

[1]www.dva.gov.au/about-us/our-business-reporting/freedom-information

References

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1. http://www.dva.gov.au/about-us/our-busin...

INFORMATION.LAW, Department of Veterans' Affairs

1 Attachment

Dear Julie,

 

I refer to your request for access to documents held by the Department of
Veterans’ Affairs (Department) under the Freedom of Information Act 1982
(Cth) (FOI Act).

 

Your request was received by the Department on 5 November 2020 and was
made in the following terms:

 

‘…For the purposes of the Freedom of Information Act, I request copy of
the following document/s, and any such discrete document does not exist
but the official information does, I request the Department to produce a
written document containing the information in discrete form by use of
computer and other equipment to retrieve and collate the stored official
information sought:

 

* A list of all briefs that were signed by the Secretary during October
2020; and

 

* Copy of the first page only of each brief signed by the Secretary during
October 2020.

 

Severability: If one part of the scope is intended to be delayed by the
Department, or made subject to consultation, but the other part can
proceed, then the Department is to either give staged access to that part
or treat the FOI as two separate requests made on 5 November…’

 

The Department has 30 days to finalise your request. The 30 day statutory
timeframe commenced the day after your request was received by the
Department.

 

Ordinarily you should expect a decision from the Department by 7 December
2020.

 

Interrupted work practices impacted by COVID-19

 

The Department is continuing to work through its FOI case load as quickly
as possible. However, the Department is and will continue to experience an
interruption in the way it will be able to manage FOI requests. As you are
likely to be aware, COVID-19 (Coronavirus) has been declared a pandemic by
the World Health Organisation. As the Department focuses its efforts on
managing the impact of COVID-19 on its critical services and employees,
other non-critical services may not be delivered within expected
timeframes. It is possible that during this time, business areas that
would ordinarily have capacity to undertake searches and assist in the
processing of FOI requests may not be readily available to provide that
assistance. This may have an impact on the manner and timeframe in which
the Department can process FOI requests.

 

We apologise for the inconvenience and appreciate your patience during
this period.

 

When the processing period may be extended or suspended

 

As noted above, there are times when the timeframe for processing your
request might be extended by an additional 30 days. This can occur where
an extension of time has been agreed to by yourself under section 15AA of
the FOI Act or where the OAIC has granted an extension of time under
sections 15AB or 15AC of the FOI Act. In addition, if documents you seek
contain information of third parties and the Department is of the view
that is practical to consult with the third parties, then the Department
will be afforded an additional 30 days to undertake that consultation
process (see sections 15(6), 26A, 27 and 27A of the FOI Act). The
Department will advise you if a third party consultation process is
required and of the revised due date for your request to be finalised by.

 

Communication with you

 

The FOI Act requires that you provide us with an address which we can send
notices to. You have advised your electronic address is
[1][FOI #6870 email]. We will send all notices
and correspondence to this address. Please advise us if you wish
correspondence to be sent to another address or if your address changes.
If you do not advise us of changes to your address, correspondence and
notices will continue to be sent to the address specified above.

 

FOI Disclosure log – Publication of documents released under the FOI Act

 

Please note that information released under the FOI Act may be published
in a disclosure log on the Department’s website at
[2]https://www.dva.gov.au/about-us/overview....
Section 11C of the FOI Act requires this publication, however it is
subject to certain exceptions, including where publication of personal,
business, professional or commercial information would be unreasonable.

 

When a decision is provided to you, the Department will advise if the
documents released to you will be published on the Department’s FOI
Disclosure log.

 

Contacting us about your FOI request

 

We will email again when the Department has more information. Should you
have any enquiries concerning this matter, please send an email to
[3][email address].

 

Further information on FOI processing can be found at the website of the
OAIC at [4]https://www.oaic.gov.au/freedom-of-infor....

 

Yours sincerely,

 

Famida (Position Number 62212449)

Information Access Officer

Information Law Section

Legal Services and Audit Branch

Department of Veterans’ Affairs

t 1800 555 254 | e [5][email address] | [6]www.dva.gov.au

p GPO Box 9998, Canberra ACT 2601

[7]cid:image001.png@01D0027A.1DAB84F0

P Please consider the environment before printing this email

show quoted sections

INFORMATION.LAW, Department of Veterans' Affairs

1 Attachment

Dear Julie,

 

We refer to FOI 39042, I confirm that the Department has been processing
your request.

 

At present, our business areas have been attempting to conduct reasonable
searches in accordance with the terms of your request. However, we require
some clarification from you in order to be able to identify the documents
you are seeking access to.

 

Could you please provide the Department with clarification on the
following terms:

 

·         What do you mean by the term ‘brief’? Are you wanting formal
action briefs, or other correspondence or briefing documents that don’t
come with an action brief but go directly to the Minister’s Office?

 

·         Could you be more clear about the type of signature you are
referring to? Are you wanting every brief that the secretary signs off on
to go to the minister’s office or only the briefs that the secretary is a
signatory to? Does the term ‘signed’ captured documents approved by the
secretary and/or electronically signed, or are you only wanting
briefs/documents physically signed by the secretary?

 

I note that the Department has been attempting to undertake searches in
response to your request, but has been finding it difficult to identify
the documents you are requesting without further clarification on the
above points.

 

We would be grateful if you could provide the Department with a response
not later than COB 24 November 2020.

 

I note that if the Department is not able to sufficiently clarify the
terms of your request so as to be able to identify the documents you are
requesting, we may be required to undertake a formal consultation process
with your under section 24AB of the Freedom of Information Act 1982.

 

Kind regards

 

Famida (Position Number[Phone Number Hidden])

Information Access Officer

Information Law Section

Legal Services and Audit Branch

Department of Veterans’ Affairs

t[Phone Number Hidden]4 | e [1][email address] | [2]www.dva.gov.au

p GPO Box 9998, Canberra ACT 2601

[3]cid:image001.png@01D0027A.1DAB84F0

P Please consider the environment before printing this email

IMPORTANT: This document contains legal advice and may be subject to legal
professional privilege. Unless it is waived or lost, legal professional
privilege is a rule of law that, in part, provides that the client need
not disclose confidential communications between a legal practitioner and
client. To keep this privilege, the purpose and content of this advice
must only be disclosed to persons who have a need to know and on the basis
that those persons also keep it confidential.

You should consider this advice and take it into account when forming a
decision on how best to proceed. If you decide to adopt a position that
does not align with this advice, you should not state that DVA Legal
Services & Audit Branch has cleared or endorsed a particular position.

 

From: INFORMATION.LAW
Sent: Friday, 6 November 2020 1:56 PM
To: '[FOI #6870 email]'
Cc: INFORMATION.LAW
Subject: Acknowledgement of your Freedom of Information (FOI) Request –
FOI 39042 [SEC=OFFICIAL]

 

Dear Julie,

 

I refer to your request for access to documents held by the Department of
Veterans’ Affairs (Department) under the Freedom of Information Act 1982
(Cth) (FOI Act).

 

Your request was received by the Department on 5 November 2020 and was
made in the following terms:

 

‘…For the purposes of the Freedom of Information Act, I request copy of
the following document/s, and any such discrete document does not exist
but the official information does, I request the Department to produce a
written document containing the information in discrete form by use of
computer and other equipment to retrieve and collate the stored official
information sought:

 

* A list of all briefs that were signed by the Secretary during October
2020; and

 

* Copy of the first page only of each brief signed by the Secretary during
October 2020.

 

Severability: If one part of the scope is intended to be delayed by the
Department, or made subject to consultation, but the other part can
proceed, then the Department is to either give staged access to that part
or treat the FOI as two separate requests made on 5 November…’

 

The Department has 30 days to finalise your request. The 30 day statutory
timeframe commenced the day after your request was received by the
Department.

 

Ordinarily you should expect a decision from the Department by 7 December
2020.

 

Interrupted work practices impacted by COVID-19

 

The Department is continuing to work through its FOI case load as quickly
as possible. However, the Department is and will continue to experience an
interruption in the way it will be able to manage FOI requests. As you are
likely to be aware, COVID-19 (Coronavirus) has been declared a pandemic by
the World Health Organisation. As the Department focuses its efforts on
managing the impact of COVID-19 on its critical services and employees,
other non-critical services may not be delivered within expected
timeframes. It is possible that during this time, business areas that
would ordinarily have capacity to undertake searches and assist in the
processing of FOI requests may not be readily available to provide that
assistance. This may have an impact on the manner and timeframe in which
the Department can process FOI requests.

 

We apologise for the inconvenience and appreciate your patience during
this period.

 

When the processing period may be extended or suspended

 

As noted above, there are times when the timeframe for processing your
request might be extended by an additional 30 days. This can occur where
an extension of time has been agreed to by yourself under section 15AA of
the FOI Act or where the OAIC has granted an extension of time under
sections 15AB or 15AC of the FOI Act. In addition, if documents you seek
contain information of third parties and the Department is of the view
that is practical to consult with the third parties, then the Department
will be afforded an additional 30 days to undertake that consultation
process (see sections 15(6), 26A, 27 and 27A of the FOI Act). The
Department will advise you if a third party consultation process is
required and of the revised due date for your request to be finalised by.

 

Communication with you

 

The FOI Act requires that you provide us with an address which we can send
notices to. You have advised your electronic address is
[4][FOI #6870 email]. We will send all notices
and correspondence to this address. Please advise us if you wish
correspondence to be sent to another address or if your address changes.
If you do not advise us of changes to your address, correspondence and
notices will continue to be sent to the address specified above.

 

FOI Disclosure log – Publication of documents released under the FOI Act

 

Please note that information released under the FOI Act may be published
in a disclosure log on the Department’s website at
[5]https://www.dva.gov.au/about-us/overview....
Section 11C of the FOI Act requires this publication, however it is
subject to certain exceptions, including where publication of personal,
business, professional or commercial information would be unreasonable.

 

When a decision is provided to you, the Department will advise if the
documents released to you will be published on the Department’s FOI
Disclosure log.

 

Contacting us about your FOI request

 

We will email again when the Department has more information. Should you
have any enquiries concerning this matter, please send an email to
[6][email address].

 

Further information on FOI processing can be found at the website of the
OAIC at [7]https://www.oaic.gov.au/freedom-of-infor....

 

Yours sincerely,

 

Famida (Position Number[Phone Number Hidden])

Information Access Officer

Information Law Section

Legal Services and Audit Branch

Department of Veterans’ Affairs

t[Phone Number Hidden]4 | e [8][email address] | [9]www.dva.gov.au

p GPO Box 9998, Canberra ACT 2601

[10]cid:image001.png@01D0027A.1DAB84F0

P Please consider the environment before printing this email

show quoted sections

Dear Famida,

I would highlight Re Gould and Department of Health [1985] AATA 63 and paragraph 3.54 of the Guidelines which state "A request should be interpreted as extending to any document that might reasonably be taken to be included within the description the applicant has used" and guidance that FOI entities are not to take up overly arbitrary technical positions over scope in lieu of the common or ordinary meaning of words used in a scope.

In government, a brief is a summary document prepared by agency staff for an office holder, that seeks to provide an overview of one or more issues, and that often seeks consent for a course of action to be approved, or presents options to be endorsed by that office holder (but sometimes can simply be advisory only, with no action required other than to "note" the contents of the brief).

A brief signed by the Secretary would, in terms of an FOI scope, include any brief signed by the Secretary regardless of the mechanism of that signature (physical, electronic, etc).

These are things I know you are already aware of, so a little bit of mischief is apparent.

To avoid all doubt, any document which received the Secretary's signature during the scope period (regardless of whether a physical or electronic signature), that had for that document (whether stamped on, stapled to, digitally attached, or in the document itself) a specific box or area for the Secretary's signature or initials (whether physical or electronic), and which had such a signature or initials, and was a document that sought the Secretary to either "note", "approve", "agree", "endorse" or "discuss" (or other similar verbs) as an action requested, is a document in scope in the scope period.

Sincerely

Julie

INFORMATION.LAW, Department of Veterans' Affairs

** This is an automated response. Please do not reply to this email **

IMPORTANT INFORMATION

Thank you for your email. The Department will take all reasonable efforts
to respond to your email and process your request.

Please note that due the threat of COVID-19 (Coronavirus), the Department
is experiencing a diversion of resources that are critical to managing
Australia’s response. This means we may not be able to process your
request within the expected timeframe and where needed, will be seeking
extensions of time to manage requests and may need to consult with you if
your request is not clear or is for a large and unmanageable number of
documents. The Department remains committed to ensuring it can process as
many information access requests as it can during the pandemic. We ask for
your assistance by only making requests where they are of a priority and
to ensure those requests are as specific as possible.

We apologise for the inconvenience and appreciate your understanding,
cooperation and patience during this difficult time for all Australians.

More detailed messaging can be found on the Department’s website at
[1]https://www.dva.gov.au/newsroom/latest-n....

Kind regards,

Information Law Section
Department of Veterans' Affairs

References

Visible links
1. https://www.dva.gov.au/newsroom/latest-n...

INFORMATION.LAW, Department of Veterans' Affairs

2 Attachments

Good afternoon Julie,

 

Please find attached correspondence in relation to your FOI request (FOI
39042).

 

This is a notification that the Department is undertaking a request
consultation process with you under section 24AB of the FOI Act. A
response is due by 15 December 2020.

 

Please let me know if you have any questions or would like further time to
respond.

Kind regards

Jo

 

 

Jo (Position Number 62210326)

Assistant Director

Information Law Section

Legal Services and Audit Branch

Department of Veterans’ Affairs

t 1800 555 254 | e [1][email address]  | [2]www.dva.gov.au

p GPO Box 9998, Canberra ACT 2601

[3]cid:image001.png@01D0027A.1DAB84F0

P Please consider the environment before printing this email

IMPORTANT:  This document contains legal advice and may be subject to
legal professional privilege. Unless it is waived or lost, legal
professional privilege is a rule of law that, in part, provides that the
client need not disclose confidential communications between a legal
practitioner and client. To keep this privilege, the purpose and content
of this advice must only be disclosed to persons who have a need to know
and on the basis that those persons also keep it confidential.

You should consider this advice and take it into account when forming a
decision on how best to proceed. If you decide to adopt a position that
does not align with this advice, you should not state that DVA Legal
Services & Audit Branch has cleared or endorsed a particular position.

 

show quoted sections

Dear Department of Veterans' Affairs.

This bad faith misuse of request consultation is contrary to your obligations under the Freedom of Information Act to facilitate and promote public access to official documents, promptly and at the lowest reasonable cost as set out by section 3(4) of the Act.

I have notified the Information Commissioner under section 70 as a result, copy of which is below.

In short, the estimates given by the Department are not based on any real sampling, but on exaggerated and overblown 'guesstimates' by the delegate, along with other risible excuses made by the delegate for non-performance.

The claim that the Secretary's Office has no idea what briefs the Secretary signs, or when, and keeps no register of such important high level documents is either a grave matter of concern for ANAO/Archives (given the legal requirements imposed on the Department) or yet another example of bad faith risible claims made by the Information Law area of the Department.

A request consultation period concludes (section 24AB(6)) once the agency is advised the FOI request is withdrawn, revised or the request to revise has been declined. I do not vary my request (which was to include the list of all briefs, whether the Secretary was the final signatory or not, that the Secretary signed or initialed in October 2020), other than the Department may provide staged access as follows:
* The schedule of all such documents in scope no later than Thursday 12 December 2020 (including brief title, number of pages, and any exemption flagged for the first page); and
* The first page of all briefs in scope no later than Thursday 19 December 2020.

Sincerely

Julie

---------- Forwarded message ----------
From: Julie A.
Date: On Mon, Dec 7, 2020
Subject: Fwd: Section 70 FOI Act Complaint - Department of Veterans' Affairs - Request Consultation Decision Issued 2 December 2020
To: FOIDR <[email address]>
Cc:
Dear Madam/Sir,

I am a person, and for the purposes of the Freedom of Information Act I am making a section 70(1) complaint, in writing, in respect of the Department of Veterans' Affairs Request Consultation Decision of 2 December 2020.

While I note the Information Commissioner is of the view that a section 70(1) complaint is not desired by her when an IC Review of an FOI decision is available, no IC Review is available of a Request Consultation decision under the FOI Act (as it is not an access grant or access refusal decision or deemed decision), so the only appropriate avenue is a section 70 complaint regarding the actions of the Department in respect to this FOI request (and the pattern of practice it reveals, when assessed against a repeated practice by the Department to make Request Consultation decisions within only a few days of the expiry of the processing deadline, contrary to the obligation under the Guidelines for the Department to identify any intention to seek request consultation as soon as is practicable and not to use request consultations as an artificial means to otherwise circumvent the 30 day processing period by impeding timely access).

The Request Consultation decision the subject of this complaint is available here https://www.righttoknow.org.au/request/6...

It relates to an FOI request made to the Department on 5 November 2020, which was due for decision on Monday 7 December 2020. As mentioned, the Request Consultation Decision (which was not flagged informally beforehand as is recommended by the Guidelines) was only issued late evening on 2 December 2020 (five calendar days before expiry of the processing period). As mentioned, this is inconsistent with the obligation to give timely notice of any request consultation - as a guideline of acceptable practice followed at other agencies:
[2020] AICmr 58 (Consultation request decision on Day 18);
[2020] AICmr 53 (Consultation request decision on Day 11);
[2020] AICmr 51 (Consultation request decision on Day 18);
[2020] AICmr 39 (Consultation request decision on Day 15);
[2020] AICmr 28 (Consultation request decision on Day 14);
[2020] AICmr 26 (Consultation request decision on Day 19);
[2020] AICmr 25 (Consultation request decision on Day 1);
[2020] AICmr 20 (Consultation request decision on Day 9);
[2020] AICmr 12 (Consultation request decision on Day 4); and
[2020] AICmr 11 (Consultation request decision on Day 6);

This is to contrasted to a recent history of the Department's request consultation decision timings from those published on Right to Know:
On Day 27 https://www.righttoknow.org.au/request/b...
On Day 23 https://www.righttoknow.org.au/request/t...
On Day 23 https://www.righttoknow.org.au/request/t...
On Day 23 https://www.righttoknow.org.au/request/c...
On Day 23 https://www.righttoknow.org.au/request/c...
On Day 23 https://www.righttoknow.org.au/request/c...
On Day 26 https://www.righttoknow.org.au/request/e...

This former highlights the reasonable expectation that any request consultation intention be identified by the agency around a fortnight after it receives an FOI request, and the latter indicates the degree of deviation by the Department to this principle. Last minute request consultation requests create a real risk that an agency is using request consultations as a unfair barrier to access than for any real operational need (as the Department's history here shows).

It is inevitable that the Department will, like in past pseudo-consultation claims, seek a extension from the Information Commissioner after the consultation period expires (and the Department will use all of the consultation period to delay processing, even if scope was reduced to one page tonight - in violation of section 24AB(6)(b) as it has done previously) or claim third party consultation, to intentionally cause even more prolonged delay (as the Department's FOI statistics bear out).

So, for the reasons given above, it is appropriate to make a section 70(1) complaint at this point, rather than let this improper practice be compounded further by more improper practice by the Department. It is readily apparent that the Department has not intended to seek request consultation co-operatively and in good faith as required (refer [37] at Warren and Dept of Human Services [2019] AICmr 22).

Apart from the late deployment of the Request Consultation Decision (intended solely to interfere with the obligation to facilitate and promote public access to official documents, promptly and at the lowest reasonable cost as set out by section 3(4) of the Act), the Request Consultation Decision made by the Department raises the following issues relevant to a section 70 investigation:

* Despite clearly stating the scope of the FOI (see below) as including any brief signed or initialed by the Secretary herself (in any form or way) during October 2020 as being within scope, the delegate at paragraph 7 ignores this and redefines the scope without my consent as being for "briefs in which the Secretary was the final signatory" despite this clearly being contrary to the scope defined by me with the delegate.

"...a brief is a summary document prepared by agency staff for an office holder, that seeks to provide an overview of one or more issues, and that often seeks consent for a course of action to be approved, or presents options to be endorsed by that office holder (but sometimes can simply be advisory only, with no action required other than to "note" the contents of the brief).

A brief signed by the Secretary would, in terms of an FOI scope, include any brief signed by the Secretary regardless of the mechanism of that signature (physical, electronic, etc). To avoid all doubt, any document which received the Secretary's signature during the scope period (regardless of whether a physical or electronic signature), that had for that document (whether stamped on, stapled to, digitally attached, or in the document itself) a specific box or area for the Secretary's signature or initials (whether physical or electronic), and which had such a signature or initials, and was a document that sought the Secretary to either "note", "approve", "agree", "endorse" or "discuss" (or other similar verbs) as an action requested, is a document in scope in the scope period..."

* The scope is only for any brief processed through the Secretary's office (as all briefs to a Department Secretary would be required to be submitted through), for the Secretary's signature or initials - it is inconceivable that the Department is so grossly mismanaged that the Secretary's Office has no register of such internal or external briefs being processed through them and/or that a copy of any such signed or initialed brief would not be recorded/captured digitally in TRIM or other electronic database by the Department and the Secretary's Office (otherwise these important documents would go missing, have unknown statuses, etc grinding Departmental processes to a halt repeatedly). There is no Departmental Secretary's office that is run in such a manner - briefs to or thru the Secretary are significant Department documents, which the Archives Act requires solid records to be kept of, including registers and more advanced recording keeping than other transactional Department documents.

* The Department claims (paragraph 15, page 5) that the Secretary received over 111 briefs through PDMS alone "for the Secretary's signature in October 2020" - firstly, the scope of the FOI was for briefs signed or initialed by the Secretary in October 2020, not received, and this claim should be evaluated with regard to the Department's previous fraudulent section 15AB claim of 31 July 2020 (RQ20/02874) which claimed that there were over 200 pages of documents in scope for FOI 36929, only for the FOI decision released on 2 September to identify only 3 pages of documents in scope (and those being very summary power point slides), for what was a multi-million dollar Departmental program. Both the former and the latter indicate that this claim by the Department should be treated with upmost caution, given their repeated propensity to misrepresent key facts.

* The Department has claimed (also paragraph 15, page 5) in its Request Consultation that to review the first page (as only the first page of briefs within scope are requested) of briefs in scope would take 10 minutes per page to just review the first page of each brief (and another additional 11 hours on top of this to consider exemptions, redact, and prepare any subsequent FOI decision) - this is grossly excessive to the review time considered appropriate and defendable by the Information Commissioner for such documents (30 seconds for review alone, but up to 5 minutes if assessing, reviewing and redacting for release - unless the document required specialist technical knowledge to assess or contained an overwhelming amount of sensitive information that would require redaction), and is directly contrary to the Information Commissioner's finding in 'GD' and DPMC [2015] AICmr 46 [at 21]. It is relevant that the documents in scope are briefs either for the Secretary or the Minister (passing through the Secretary) and as such will be written in plain English and written for accessibility (given the Minister and the Secretary are not technical specialists, but general management executives), as is the expectation and format for such briefs (so use of dot point summary style presentation), and that the first page of any such brief is typically an executive summary, so written for easily readability.

* While such estimates are required to be made on a sample of 10% to 15% of documents in scope, it does not appear any such sampling took place (no evidence of any is given by the delegate beyond "initial enquiries" having been alleged), but the estimates given appear based solely on 'guesstimates' by the delegate for what the might believe any such sample may show.

* The delegate also estimates another 37 hours to search and create a list of all briefs in scope for October 2020, which again is figure without evidence, and which appears excessively overinflated by the delegate, for the reasons mentioned above.

* Despite the Department claiming COVID impacts (paragraph 19-20), the areas responsible for the documents in scope of the request are based in Canberra and Brisbane (and unlike Melbourne) neither location is subject to COVID workplace reduction restrictions. Despite the Department repeatedly claiming all year that its FOI operations have been impacted by COVID, it has repeatedly resisted requests (including FOI - see https://www.righttoknow.org.au/request/s... ) for evidence of any such impact on the Information Law area (which is based in Brisbane) that is tasked for all such FOI activity for the Department. Brisbane and Canberra, unlike Sydney, have had no real COVID workplace restrictions and Department staff in Information Law are provided with full facilities to work from home remotely in any case. Notably the Information Law area within the Department has no COVID related duties and claims of it being impacted by 'redeployment' activities are untenable (as these are carried out by another Division at the Department - by health policy officers, not lawyers).

* The claim (paragraph 20) by the Department that they are the "third highest recipient of FOI requests" and inferring that this reduces their responsibilities as a result under FOI law is outrageous and contrary to the Guidelines which state that there is an expectation that agencies will sufficiently staff their FOI areas to meet their obligations under the FOI Act, given it is their inherent non-derogable responsibility to do so.

As this decision raises multiple systemic conduct issues, especially when assessed against a repeated pattern of improper use of request consultation periods by the Department, it is appropriate for investigation by the Information Commissioner under section 70.

Sincerely

Julie

INFORMATION.LAW, Department of Veterans' Affairs

** This is an automated response. Please do not reply to this email **

IMPORTANT INFORMATION

Thank you for your email. The Department will take all reasonable efforts
to respond to your email and process your request.

Please note that due the threat of COVID-19 (Coronavirus), the Department
is experiencing a diversion of resources that are critical to managing
Australia’s response. This means we may not be able to process your
request within the expected timeframe and where needed, will be seeking
extensions of time to manage requests and may need to consult with you if
your request is not clear or is for a large and unmanageable number of
documents. The Department remains committed to ensuring it can process as
many information access requests as it can during the pandemic. We ask for
your assistance by only making requests where they are of a priority and
to ensure those requests are as specific as possible.

We apologise for the inconvenience and appreciate your understanding,
cooperation and patience during this difficult time for all Australians.

More detailed messaging can be found on the Department’s website at
[1]https://www.dva.gov.au/newsroom/latest-n....

Kind regards,

Information Law Section
Department of Veterans' Affairs

References

Visible links
1. https://www.dva.gov.au/newsroom/latest-n...

INFORMATION.LAW, Department of Veterans' Affairs

1 Attachment

Dear Julie

 

Thank you for your email below and response to our section 24AB
consultation notice.

 

A decision on your request is currently due today, 10 December 2020.

 

So that the Department is able to fully consider your consultation
response and further consult with its business areas on the scope of your
request, we ask that you consider granting the Department an extension of
time under section 15AA of the FOI Act, for a further 30 days.

 

If we do not hear back from you by COB today 10 December 2020, we intend
to apply to the Office of the Australian Information Commissioner (OAIC)
for an extension of time under section 15AB of the FOI Act, on the basis
that processing your request is complicated and/or voluminous.

             

We apologise for the short turn around.

 

Kind regards

Jo

 

Jo (Position Number 62210326)

Assistant Director

Information Law Section

Legal Services and Audit Branch

Department of Veterans’ Affairs

t 1800 555 254 | e [1][email address]  | [2]www.dva.gov.au

p GPO Box 9998, Canberra ACT 2601

[3]cid:image001.png@01D0027A.1DAB84F0

P Please consider the environment before printing this email

IMPORTANT:  This document contains legal advice and may be subject to
legal professional privilege. Unless it is waived or lost, legal
professional privilege is a rule of law that, in part, provides that the
client need not disclose confidential communications between a legal
practitioner and client. To keep this privilege, the purpose and content
of this advice must only be disclosed to persons who have a need to know
and on the basis that those persons also keep it confidential.

You should consider this advice and take it into account when forming a
decision on how best to proceed. If you decide to adopt a position that
does not align with this advice, you should not state that DVA Legal
Services & Audit Branch has cleared or endorsed a particular position.

 

show quoted sections

Dear Jo,

This FOI is now a deemed refusal decision, and the practice of seeking extension on the final day (after already stopping the clock for a bad faith request consultation) is an unconscionable practice (even if I flagged you abuse this in advance).

The object of the Freedom of Information Act 1982 (the FOI Act) is to give the Australian community access to information held by the Australian Government, to be performed and exercised by agencies, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

Why is it that the Department of Veterans' Affairs repudiates these statutory responsibilities every single time?

Sincerely

Julie

INFORMATION.LAW, Department of Veterans' Affairs

** This is an automated response. Please do not reply to this email **

IMPORTANT INFORMATION

Thank you for your email. The Department will take all reasonable efforts
to respond to your email and process your request.

Please note that due the threat of COVID-19 (Coronavirus), the Department
is experiencing a diversion of resources that are critical to managing
Australia’s response. This means we may not be able to process your
request within the expected timeframe and where needed, will be seeking
extensions of time to manage requests and may need to consult with you if
your request is not clear or is for a large and unmanageable number of
documents. The Department remains committed to ensuring it can process as
many information access requests as it can during the pandemic. We ask for
your assistance by only making requests where they are of a priority and
to ensure those requests are as specific as possible.

We apologise for the inconvenience and appreciate your understanding,
cooperation and patience during this difficult time for all Australians.

More detailed messaging can be found on the Department’s website at
[1]https://www.dva.gov.au/newsroom/latest-n....

Kind regards,

Information Law Section
Department of Veterans' Affairs

References

Visible links
1. https://www.dva.gov.au/newsroom/latest-n...

INFORMATION.LAW, Department of Veterans' Affairs

1 Attachment

Good afternoon Julie,

 

Thank you for your email.

 

As advised in my email to you of 10 December, the Department has requested
a section 15AB extension of time from the OAIC.

 

However, irrespective of whether this is approved, the Department will
continue to process your request and provide a decision as soon as
possible.

 

Kind regards

Jo

 

Jo (Position Number 62210326)

Assistant Director

Information Law Section

Legal Services and Audit Branch

Department of Veterans’ Affairs

t 1800 555 254 | e [1][email address]  | [2]www.dva.gov.au

p GPO Box 9998, Canberra ACT 2601

[3]cid:image001.png@01D0027A.1DAB84F0

P Please consider the environment before printing this email

IMPORTANT:  This document contains legal advice and may be subject to
legal professional privilege. Unless it is waived or lost, legal
professional privilege is a rule of law that, in part, provides that the
client need not disclose confidential communications between a legal
practitioner and client. To keep this privilege, the purpose and content
of this advice must only be disclosed to persons who have a need to know
and on the basis that those persons also keep it confidential.

You should consider this advice and take it into account when forming a
decision on how best to proceed. If you decide to adopt a position that
does not align with this advice, you should not state that DVA Legal
Services & Audit Branch has cleared or endorsed a particular position.

 

show quoted sections

Avanithah Selvarajah,

6 Attachments

Our reference: RQ20/04150

Agency reference: FOI 39042

Julie

 

Sent by email: [1][FOI #6870 email]

Extension of time under s 15AB

Dear Julie

Please find attached a decision of today’s date.

 

Kind regards,

 

[2][IMG]   Avanithah Selvarajah  |  Review and
Investigations Adviser (Legal)
(A/g)

Freedom of information

Office of the Australian
Information Commissioner

GPO Box 5218 Sydney NSW 2001  |
 [3]oaic.gov.au

+61 2 9284 9625 | 
[4][email address]
[9]Subscribe to
[5]Facebook | [6]LinkedIn | [7]Twitter |   [8]Subscribe icon Information
Matters

 

 

show quoted sections

References

Visible links
1. mailto:[FOI #6870 email]
2. https://www.oaic.gov.au/
3. https://aus01.safelinks.protection.outlo...
4. mailto:[email address]
5. https://aus01.safelinks.protection.outlo...
6. https://aus01.safelinks.protection.outlo...
7. https://aus01.safelinks.protection.outlo...
9. https://www.oaic.gov.au/media-and-speech...

Penny left an annotation ()

This was due on the 10th of January 2021?

INFORMATION.LAW, Department of Veterans' Affairs

1 Attachment

Dear Julie

Freedom of information request no. FOI 39042

I refer to your request for access to documents relating to briefs signed
by the Secretary in October 2020 under the Freedom of Information Act 1982
(FOI Act).

 

As your request covers documents which contain another individual’s
personal information, the Department is required to consult with that
individual (under section 27A of the FOI Act) before making a decision on
the release of those documents.

 

For this reason the period for processing your request has been extended
by 30 days in order to allow our agency time to consult with that
individual (section 15(6) of the FOI Act). The processing period for your
request will now end on 10 February 2021.

 

The consultation mechanism under section 27A applies when we believe the
individual (or their representative) may wish to contend that the
requested documents are exempt for reasons of personal privacy. We will
take into account any comments we receive from the individual but the
final decision about whether to grant you access to the documents you
requested rests with this Department.

 

Kind regards

Jo

 

Jo (Position Number 62210326)

Assistant Director

Information Law Section

Legal Services and Audit Branch

Department of Veterans’ Affairs

t 1800 555 254 | e [1][email address]  | [2]www.dva.gov.au

p GPO Box 9998, Canberra ACT 2601

[3]cid:image001.png@01D0027A.1DAB84F0

P Please consider the environment before printing this email

IMPORTANT:  This document contains legal advice and may be subject to
legal professional privilege. Unless it is waived or lost, legal
professional privilege is a rule of law that, in part, provides that the
client need not disclose confidential communications between a legal
practitioner and client. To keep this privilege, the purpose and content
of this advice must only be disclosed to persons who have a need to know
and on the basis that those persons also keep it confidential.

You should consider this advice and take it into account when forming a
decision on how best to proceed. If you decide to adopt a position that
does not align with this advice, you should not state that DVA Legal
Services & Audit Branch has cleared or endorsed a particular position.

 

show quoted sections

Attn INFORMATION.LAW,

Your extension of time expired on 10 January 2021, and as you did not provide a decision at that time, the decision became a deemed refusal at that point in accordance with section 15AC(8)(a).

Your third party consultation claim, made on 11 January 2021, is invalid (for it to have been valid, it would have had to be made before the expiry of the EOT period).

Given the persistent abuse by the Department of Veterans' Affairs of multiple extension of processing time avenues (first, misuse of the request consultation period, then a fraudulent section 15AB extension of time request, followed by an invalid third party consultation request made after the decision became deemed), this matter will be referred for IC review.

Sincerely

Julie

INFORMATION.LAW, Department of Veterans' Affairs

** Important message **

Thank you for contacting the Department of Veterans’ Affairs.

 

Your email has been received and will be actioned as soon as possible. We
will seek to address your request within any statutory timeframes that may
apply and seek extensions of time where needed. If statutory timeframes do
not apply, we will aim to address your email within 30 days or sooner
where possible. 

Kind regards,

Information Law Section
Department of Veterans' Affairs

INFORMATION.LAW, Department of Veterans' Affairs

Good afternoon Julie,

 

Thank you for your email.

 

As 10 January 2021, was a Sunday, this means that a decision on your
request became due on 11 January 2021, the date on which the Department
advised you of the third party consultations.

 

You may wish to read the OAIC's advice on this point, available [1]here,
in particular:

 

“When does the processing period end?

The end of the 30 day processing period is affected by s 36(2) of the Acts
Interpretation Act 1901. If the last day for notifying a decision falls on
a Saturday, Sunday or a public holiday, the timeframe will expire on the
first day following which is none of those days.”

 

Kind regards

Jo

 

Jo (Position Number 62210326)

Assistant Director

Information Law Section

Legal Services and Audit Branch

Department of Veterans’ Affairs

t 1800 555 254 | e [email address]  | www.dva.gov.au

p GPO Box 9998, Canberra ACT 2601

 

Please consider the environment before printing this email

IMPORTANT:  This document contains legal advice and may be subject to
legal professional privilege. Unless it is waived or lost, legal
professional privilege is a rule of law that, in part, provides that the
client need not disclose confidential communications between a legal
practitioner and client. To keep this privilege, the purpose and content
of this advice must only be disclosed to persons who have a need to know
and on the basis that those persons also keep it confidential.

You should consider this advice and take it into account when forming a
decision on how best to proceed. If you decide to adopt a position that
does not align with this advice, you should not state that DVA Legal
Services & Audit Branch has cleared or endorsed a particular position.

show quoted sections

INFORMATION.LAW, Department of Veterans' Affairs

1 Attachment

Good morning Julie,

 

I refer to your FOI request (39042) for access to the following:

 

* A list of all briefs that were signed by the Secretary during October
2020; and

 

* Copy of the first page only of each brief signed by the Secretary during
October 2020.

 

Requested scope revision

I have identified one document in scope that concerns the death of a
veteran by suicide. As this is a sensitive topic, and may cause distress
to the veteran’s family, I am seeking your agreement to either:

·         Remove this brief from scope, or

·         Remove any personal information about the veteran from the
brief.

 

I would be grateful if you could please let me know whether you agree to
either of these options by COB Friday 22 January 2021.

 

Third party consultations - update

Previously, I had advised you that the Department is undertaking third
party consultations under s27A of the FOI Act (documents affecting
personal privacy).

 

I have now identified documents that also require third party
consultations under s26A (documents affecting Commonwealth-State
relations) and s27 (business documents) which we are now undertaking.

 

These additional consultations will not affect the due date of your
request, which remains 10 February 2021.

 

Kind regards

Jo

 

Jo (Position Number 62210326)

Assistant Director

Information Law Section

Legal Services and Audit Branch

Department of Veterans’ Affairs

t 1800 555 254 | e [1][email address]  | [2]www.dva.gov.au

p GPO Box 9998, Canberra ACT 2601

[3]cid:image001.png@01D0027A.1DAB84F0

P Please consider the environment before printing this email

IMPORTANT:  This document contains legal advice and may be subject to
legal professional privilege. Unless it is waived or lost, legal
professional privilege is a rule of law that, in part, provides that the
client need not disclose confidential communications between a legal
practitioner and client. To keep this privilege, the purpose and content
of this advice must only be disclosed to persons who have a need to know
and on the basis that those persons also keep it confidential.

You should consider this advice and take it into account when forming a
decision on how best to proceed. If you decide to adopt a position that
does not align with this advice, you should not state that DVA Legal
Services & Audit Branch has cleared or endorsed a particular position.

 

show quoted sections

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