Dear Commonwealth Ombudsman,

In an article published in the Australian on 9 February 2022 entitled “Federal Court boss warned on job rule sidestep” the Federal Court’s Assistant People and Culture Director, Matt Asquith, admitted that the decision to classify registrars into EL2 and SES1 bands is primarily based on two factors:

a) additional responsibilities undertaken; and
b) “[the] SES cap the Court has, and if the positions can fit within the cap.”

Pursuant to the FOI Act, I request access to any documents in the possession of the Office of the Commonwealth Ombudsman that show that consideration of the number of capped SES positions in an agency should ever be a relevant consideration when evaluating the classification for a group of duties to be performed in an Agency.

Pursuant to the FOI Act, I also request access to any documents in the possession of the Office of the Commonwealth Ombudsman that show that a role is capable of being classified at more than one classification, depending on the complexity of the group of duties to be performed, when one of the proposed classifications is Senior Executive Band 1.

Yours faithfully,

Ray B1

Information Access, Commonwealth Ombudsman

1 Attachment

OFFICIAL

 

Dear Ray

 

I attach correspondence in relation to your Freedom of Information request
of 12 March 2022.

 

Yours sincerely

 

Gregory Parkhurst

Senior Legal Officer | Legal Team

Commonwealth Ombudsman

Ph: 1300 362 072 | Fax: 02 6276 0123

email: [1][CO request email]

 

 

 

The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.

show quoted sections

References

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1. mailto:[CO request email]

Information Access, Commonwealth Ombudsman

1 Attachment

OFFICIAL

 

Dear Ray

 

I attach correspondence in relation to your Freedom of Information request
of 12 March 2022.

 

Yours sincerely

 

Gregory Parkhurst

Senior Legal Officer | Legal Team

Commonwealth Ombudsman

Ph: 1300 362 072 | Fax: 02 6276 0123

email: [1][CO request email]

 

 

The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.

show quoted sections

References

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1. mailto:[CO request email]

Dear Mr Parkhurst,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Commonwealth Ombudsman's handling of my FOI request 'Classification of vacancies'.

You have not addressed the whole of my FOI request.

My FOI request was worded as follows:

In an article published in the Australian on 9 February 2022 entitled “Federal Court boss warned on job rule sidestep” the Federal Court’s Assistant People and Culture Director, Matt Asquith, admitted that the decision to classify registrars into EL2 and SES1 bands is primarily based on two factors:

a) additional responsibilities undertaken; and
b) “[the] SES cap the Court has, and if the positions can fit within the cap.”

Pursuant to the FOI Act, I request access to any documents in the possession of the Office of the Commonwealth Ombudsman that show that consideration of the number of capped SES positions in an agency should ever be a relevant consideration when evaluating the classification for a group of duties to be performed in an Agency.

Pursuant to the FOI Act, I also request access to any documents in the possession of the Office of the Commonwealth Ombudsman that show that a role is capable of being classified at more than one classification, depending on the complexity of the group of duties to be performed, when one of the proposed classifications is Senior Executive Band 1.

In your letter of decision, you state:

I refer to your email dated 12 March 2022 in which you requested access to certain documents under the Freedom of Information Act 1982 (the FOI Act). Your request was framed in the following way:

‘...any documents in the possession of the Office of the Commonwealth
Ombudsman that show that consideration of the number of capped SES positions
in an agency should ever be a relevant consideration when evaluating the
classification for a group of duties to be performed in an Agency...’

This letter constitutes notice of my decision on your request for access. I am authorised to make decisions on behalf of our Office under s 23 of the FOI Act.

Decision

We have searched our records for any documents we may hold which fall within the scope of your
request. Our searches did not identify any relevant documents.

Subsection 24A(1) of the FOI Act permits refusal of a request for access to a document where all reasonable steps have been taken to find the requested document or documents and the agency or Minister is satisfied that the documents do not exist. Having regard to the outcome of our searches for any documents relevant to your request, I have decided to refuse your request under subsection 24A(1) of the FOI Act.

You have not addressed the following paragraph of my request:

Pursuant to the FOI Act, I also request access to any documents in the possession of the Office of the Commonwealth Ombudsman that show that a role is capable of being classified at more than one classification, depending on the complexity of the group of duties to be performed, when one of the proposed classifications is Senior Executive Band 1.

Please ask the person who is to conduct the internal review to address the entire FOI request, as opposed to half of the FOI request.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/c...

Yours faithfully,

Ray B1

Commonwealth Ombudsman

 
 
  [1]Office of the Australian Information Reference Code:  
Commissioner ICR_10-49266345-2654
 

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-49266345-2654

To check the progress of your submission and/or confirm it has been
received you should contact the agency that provides the form. These
details are displayed below.
 
 
Office of the Australian Information Commissioner
[2]http://www.oaic.gov.au | [3]1300 363 992 | [4][email address]
GPO Box 5218, Sydney NSW 2001
 
 
Note: Please do not reply to this auto-generated email.
 

References

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Commonwealth Ombudsman

 
 
  [1]Office of the Australian Information Reference Code:  
Commissioner ICR_10-49266345-2654
 

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-49266345-2654

To check the progress of your submission and/or confirm it has been
received you should contact the agency that provides the form. These
details are displayed below.
 
 
Office of the Australian Information Commissioner
[2]http://www.oaic.gov.au | [3]1300 363 992 | [4][email address]
GPO Box 5218, Sydney NSW 2001
 
 
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References

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Commonwealth Ombudsman

1 Attachment

Our reference: MR22/00958

 

By email: [FOI #8597 email]

Receipt of your IC review application  

Thank you for your application for Information Commissioner Review (IC
review).

The Office of the Australian Information Commissioner (OAIC) is
considering your application.

If you wish to advise the OAIC of any changes to your circumstances,
including your contact details or if your FOI request has been resolved,
please write to [email address] and quote MR22/00958.

 

Yours sincerely

 

Freedom of Information Regulatory Group

Office of the Australian Information Commissioner

 

 

 

Notice:

The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.

OAIC - FOI DR,

5 Attachments

OAIC reference: MR22/00958
Ombudsman reference: FOI-2022-10035

Mr Raymond Barry

By email: [FOI #8597 email]

Update on your IC review application

Dear Mr Barry

I am in the process of communicating with the Commonwealth Ombudsman to
determine the status of your internal review request.

 

Can you please advise the OAIC if you have received a decision on your
request for internal review, or if you have received any further
communication from the Commonwealth Ombudsman on your request?

 

Once confirmed, I will progress this matter to be assessed for review.

 

Please provide a response by 26 July 2022.

 

Sincerely

 

Alistair B

[1][IMG]   Intake and Early Resolution Team

Freedom of Information Regulatory Group

Office of the Australian Information
Commissioner

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

1300 363 992  |  [3][email address]
[4][IMG] | [5][IMG] | [6][IMG] |   [7]Subscribe to OAICnet newsletter

 

 

Notice:

The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
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Dear Alistair B,

I have not been provided with a decision in respect of my internal review request. Nor have I received any correspondence from the Ombudsman's Office.

Yours sincerely,

Ray

OAIC - FOI DR,

5 Attachments

OAIC reference: MR22/00958

Agency reference: FOI-2022-10035

Mr Raymond Barry
By email: [1][FOI #8597 email]

Dear Mr Barry

Thank you for your application for Information Commissioner review (IC
review). We have today informed the Commonwealth Ombudsman that the
Information Commissioner will undertake an IC review and requested
information to assist with progressing the review.

Should you receive a revised decision from the agency in the interim,
please let us know as soon as practicable and advise whether you wish to
withdraw your IC review or proceed with a review of the revised decision.
Should you wish to proceed, please include a submission about the grounds
on which you wish to proceed to assist us in progressing your application
and provide a submission that may be shared with the agency. The
submission should:

 1. identify the aspect(s) of the Ombudsman’s decision about which the
review is sought
 2. state why you disagree with the Ombudsman’s decision
 3. identify which documents you consider have been wrongly refused or
which exemptions have been incorrectly applied

We will otherwise provide you with an update when we have received a
response.

Sincerely

Alistair Boyd

[2][IMG]   Intake and Early Resolution Team

Freedom of Information Regulatory Group

Office of the Australian Information
Commissioner

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

1300 363 992  |  [4][email address]
[5][IMG] | [6][IMG] | [7][IMG] |   [8]Subscribe to OAICnet newsletter

 

 

Notice:

The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.

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Dear Mr Boyd,

I appreciate the role you have played in extracting a review decision, delayed though it is, from the Office of the Commonwealth Ombudsman. The ordinary Australian would not be able to hold agencies to account but for the work of Office of the Australian Information Commission. I do wish that the Commonwealth Labor Government would better fund the OAIC as part of its commitments to fostering integrity and transparency in governance.

Yours sincerely,

Ray B1

Dear Mr Boyd,

Thank you for progressing my IC review request to IC review.

What I should have thanked you for yesterday is your attempts to extract a review decision from the Commonwealth Ombudsman. Just to be clear, the Ombudsman has not yet provided me with a substantive review decision but if I should receive one, and I still want the IC review to proceed, I will let you know.

Yours sincerely,

Ray B1

Dear Mr Boyd,

I wonder whether you have had any luck with the Office of the Commonwealth Ombudsman. I have not been contacted by an official in the Office of the Commonwealth Ombudsman since you notified me that the Information Commissioner had notified the Office of the Commonwealth Ombudsman that an IC review would be conducted on 3 August 2022. I was hoping you might be able to give the relevant person in the Office of the Commonwealth Ombudsman a nudge to get them to reply to my internal review request of 24 April 2022. It is now 24 September 2022. It's a slack display on the part of the Office of the Commonwealth Ombudsman.

Yours sincerely,

Ray B1

OAIC - FOI DR,

Thank you for your email.   

  

This is an automated response to confirm that your email was received by
the Office of the Australian Information Commissioner (the OAIC) Freedom
of Information Dispute Resolution (FOIDR) mailbox.  

 

Please note this mailbox is monitored between 9 am to 5 pm on Monday to
Friday, excluding public holidays and shutdown periods.  

 

New review applications and FOI complaints  

If you are seeking to lodge an application for review of an FOI decision
or a complaint about an agency’s processing of an FOI request, the OAIC
will write to you shortly.   

  

Information regarding the IC review process can be found
at: [1]https://www.oaic.gov.au/freedom-of-infor...
in [2]Part 10 of the [3]FOI Guidelines.  

  

Information regarding the FOI complaints process can be found
at: [4]https://www.oaic.gov.au/freedom-of-infor...
in [5]Part 11 of the [6]FOI Guidelines.  

 

Submissions for existing IC review matters and FOI complaints   

If you have provided submissions for a matter currently with the OAIC,
your correspondence will be attached to the relevant file. The review
adviser responsible for the matter will contact you should further
information regarding the submissions be required.  

 

Records of other agencies  

Please note that the OAIC does not hold records of other government
agencies. If you wish to request access to documents of another agency,
you will need to make a request to that agency under the FOI Act.
Information about [7]how to make an FOI request is available on the OAIC
website.  

 

General information  

The following information is available on the OAIC [8]website:  

·    FOI
reviews:  [9]https://www.oaic.gov.au/freedom-of-infor...

  

·    FOI
complaints: [10]https://www.oaic.gov.au/freedom-of-infor...

  

·    Extension of time for processing FOI
requests: [11]https://www.oaic.gov.au/freedom-of-infor...

 

We have also published guidance on applicants’ [12]review rights and
frequently asked questions for [13]individuals and [14]agencies.  

  

If you have any further enquiries, please contact the OAIC Enquiries Line
on 1300 363 992.  

  

Kind regards  

  

 

Notice:

The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
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14. https://www.oaic.gov.au/freedom-of-infor...

OAIC - FOI DR,

5 Attachments

OAIC reference: MR22/00958

Cth Ombudsman reference: FOI-2022-10035

 

Dear Mr Barry

 

The Commonwealth Ombudsman has replied to our inquiries and has confirmed
that it received your request for internal review on 24 April 2022. As you
did not receive notification from the Ombudsman, the application for
internal review was deemed to have been affirmed by the Ombudsman on 24
May 2022 under section 54D of the Freedom of Information Act.

 

I will progress your application for IC review of the deemed affirmation
to be assessed by a senior member of the FOI team. You are invited to
provide submissions on which aspects of the Ombudsman’s decision you
disagree with, and why you disagree.

 

I note that your FOI request was refused under section 24A(1) of the FOI
Act, please provide submissions that outline why the requested documents
do exist, and why they are in the possession of the Ombudsman.

 

It would greatly assist the OAIC if you can provide submissions by 3
October 2022.

 

If you have any queries or concerns, do not hesitate to contact me at
[1][email address].

 

Yours sincerely

 

Alistair B

[2][IMG]   Intake and Early Resolution Team

Freedom of Information Regulatory Group

Office of the Australian Information
Commissioner

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

1300 363 992  |  [4][email address]
[5][IMG] | [6][IMG] | [7][IMG] |   [8]Subscribe to OAICnet newsletter

 

 

show quoted sections

Dear Mr Boyd,

Thank you for your message.

I do not believe that the Office of the Commonwealth Ombudsman actually has the documents that I requested (namely any documents in the possession of the Office of the Commonwealth Ombudsman that show that a role is capable of being classified at more than one classification, depending on the complexity of the group of duties to be performed, when one of the proposed classifications is Senior Executive Band 1). I would be very surprised if the Office of the Commonwealth Ombudsman did have such documents because those documents would contradict the legal proscription relating to the classification of a role over more than one classification, depending on the complexity of the group of duties to be performed, when one of the proposed classifications is Senior Executive Band 1 - see rule 9(5) of the Public Service Classification Rules 2000 (Cth).

But that is not the issue. I am entitled, having made a lawful FOI request, to receive a considered response to the entirety of the FOI request and not just that part that the FOI officer in the Office of the Commonwealth Ombudsman feels like responding to. As I noted in my internal review application to the Office of the Commonwealth Ombudsman on 24 April 2022:

"You have not addressed the whole of my FOI request.

My FOI request was worded as follows:

In an article published in the Australian on 9 February 2022 entitled “Federal Court boss warned on job rule sidestep” the Federal Court’s Assistant People and Culture Director, Matt Asquith, admitted that the decision to classify registrars into EL2 and SES1 bands is primarily based on two factors:

a) additional responsibilities undertaken; and
b) '[the] SES cap the Court has, and if the positions can fit within the cap'”

Pursuant to the FOI Act, I request access to any documents in the possession of the Office of the Commonwealth Ombudsman that show that consideration of the number of capped SES positions in an agency should ever be a relevant consideration when evaluating the classification for a group of duties to be performed in an Agency.

Pursuant to the FOI Act, I also request access to any documents in the possession of the Office of the Commonwealth Ombudsman that show that a role is capable of being classified at more than one classification, depending on the complexity of the group of duties to be performed, when one of the proposed classifications is Senior Executive Band 1.

In your letter of decision, you state:

I refer to your email dated 12 March 2022 in which you requested access to certain documents under the Freedom of Information Act 1982 (the FOI Act). Your request was framed in the following way:

‘...any documents in the possession of the Office of the Commonwealth
Ombudsman that show that consideration of the number of capped SES positions
in an agency should ever be a relevant consideration when evaluating the
classification for a group of duties to be performed in an Agency...’

This letter constitutes notice of my decision on your request for access. I am authorised to make decisions on behalf of our Office under s 23 of the FOI Act.

Decision

We have searched our records for any documents we may hold which fall within the scope of yourrequest. Our searches did not identify any relevant documents.

Subsection 24A(1) of the FOI Act permits refusal of a request for access to a document where all reasonable steps have been taken to find the requested document or documents and the agency or Minister is satisfied that the documents do not exist. Having regard to the outcome of our searches for any documents relevant to your request, I have decided to refuse your request under subsection 24A(1) of the FOI Act.

You have not addressed the following paragraph of my request:

Pursuant to the FOI Act, I also request access to any documents in the possession of the Office of the Commonwealth Ombudsman that show that a role is capable of being classified at more than one classification, depending on the complexity of the group of duties to be performed, when one of the proposed classifications is Senior Executive Band 1.

Please ask the person who is to conduct the internal review to address the entire FOI request, as opposed to half of the FOI request."

What I would like is a decision that addresses the terms of my FOI request, and not just part of my FOI request. The FOI officer, Mr Parkhurst, failed to respond to the entirety of my FOI request. I sought internal review of his decision. Nobody at the Office of the Commonwealth Ombudsman gave the internal review request the time of day and, as such, the Commonwealth Ombudsman is taken to have affirmed Mr Parkhurst's lazy decision. I do not think that is acceptable. I know it isn't acceptable. What I would like is:

a) a decision from the Information Commissioner in relation to the documents requested; or
b) a decision from the Office of the Commonwealth Ombudsman in relation to the documents requested, as well as an apology for ignoring, for 5 months at this stage, a validly submitted internal review request.

As I said in my email to you on 24 September 2022, it's a slack display on the part of the Office of the Commonwealth Ombudsman, an agency that has been listed as a Commonwealth Integrity Agency in section 15 of the National Anti-Corruption Commission Bill 2022: see s 15(a). I wouldn't be too eager to trust the Commonwealth Ombudsman with Integrity Agency functions given that the Commonwealth Ombudsman fails to abide by the terms of the Freedom of Information Act 1982 (Cth). It's not an isolated issue. A few examples of flagrant contraventions of the Freedom of Information Act 1982 can be found on the following pages:

https://www.righttoknow.org.au/request/r...
https://www.righttoknow.org.au/request/r...
https://www.righttoknow.org.au/request/r...

Yours sincerely,

Ray

OAIC - FOI DR,

5 Attachments

OAIC reference: MR22/00958
Agency reference: FOI-2022-10035

Mr Raymond Barry

By email to: [1][FOI #8597 email]

Dear Mr Barry

Thank you for your email advising that you wish to proceed with the IC
review.

We understand that you are seeking a review of:

o The searches undertaken by the Department to identify all documents
relevant to your request.

This matter will now proceed to assessment by a senior member of the FOI
team.

Once assessed, we will contact you with an update on next steps.

If you have any enquiries about this matter in the meantime, please
contact us at [2][email address].

Yours sincerely

Alistair B

[3][IMG]   Intake and Early Resolution Team

Freedom of Information Regulatory Group

Office of the Australian Information
Commissioner

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

1300 363 992  |  [5][email address]
[6][IMG] | [7][IMG] | [8][IMG] |   [9]Subscribe to OAICnet newsletter

 

 

show quoted sections

Information Access, Commonwealth Ombudsman

6 Attachments

OFFICIAL

 

Our ref: 2022-110583, FOI-2022-10035
OAIC ref: Your ref: MR22/00958

 

Dear Ray

 

I attach correspondence in relation to your FOI request:

 

 1. Decision letter dated 7 November 2022.

 

Please do not hesitate to contact us using the details below if you have
any questions or concerns.

 

Yours sincerely

 

David

Legal Officer

Legal Team

Commonwealth Ombudsman

Phone: 1300 362 072

Email: [1][email address]
Website: [2]ombudsman.gov.au

 

[3][IMG]

Influencing systemic improvement in public administration

 

 

The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.

 

       

 

The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.

show quoted sections

References

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Dear Mr Boyd,

I refer to IC review MR22/00958.

Polly Porteous of the Office of the Commonwealth Ombudsman has finally addressed the substance of my request for internal review and IC review. Unless you think otherwise, I invite you to finalise the IC review request (MR22/00958) that I submitted to the OAIC in early June 2022.

Aside from taking this opportunity to thank you for all of your assistance, I also take this opportunity to note that I have been forced to submit a set of IC review requests against decisions of officials in the Federal Court of Australia.

Most of the FOI decisions that I have sought IC review of relate to allegations of misconduct in respect of the recruitment of National Judicial Registrars.

The IC review requests in question are:

MR22/01538 - https://www.righttoknow.org.au/request/n...

MR22/01583 - https://www.righttoknow.org.au/request/d...

MR22/01691 - https://www.righttoknow.org.au/request/d...

MR22/01692 - https://www.righttoknow.org.au/request/d... and

MR22/01693 - https://www.righttoknow.org.au/request/d....

I would appreciate acknowledgement of these IC review requests at the OAIC's earliest convenience. I am not the only person interested in these questionable National Judicial Registrar recruitment decisions and it would appear that there are inconsistent decisions in respect of requests for documents that have been advanced by decision makers in the Federal Court of Australia (most notably Registrar Claire Hammerton Cole) - see, for example, https://www.righttoknow.org.au/request/v....

Yours sincerely,

Ray B1

OAIC - FOI DR,

5 Attachments

Dear Mr Barry

Thank you for your email.

I will close your IC review application reference MR22/00958 as withdrawn
and send you confirmation shortly.

With regard to the other applications listed in your email, the reviews
are awaiting assessment by a senior member of the FOI team and the OAIC
will contact you in due course.

Sincerely

Alistair B

[1][IMG]   Intake and Early Resolution Team

Freedom of Information Regulatory Group

Office of the Australian Information
Commissioner

GPO Box 5288 Sydney NSW 2001  |
 [2]oaic.gov.au

1300 363 992  |  [3][email address]
[4][IMG] | [5][IMG] | [6][IMG] |   [7]Subscribe to OAICnet newsletter

 

 

show quoted sections

OAIC - FOI DR,

5 Attachments

Dear

Thank you for your response.

This matter is now considered withdrawn under s 54R of the Freedom of
Information Act 1982 (Cth).

Section 54R(2) states that if an IC review application is withdrawn, it is
taken never to have been made.

The matter is now closed.

Sincerely

Alistair B

[1][IMG]   Intake and Early Resolution Team

Freedom of Information Regulatory Group

Office of the Australian Information
Commissioner

GPO Box 5288 Sydney NSW 2001  |
 [2]oaic.gov.au

1300 363 992  |  [3][email address]
[4][IMG] | [5][IMG] | [6][IMG] |   [7]Subscribe to OAICnet newsletter

 

 

show quoted sections