Consultations regarding Waiver of Privacy Act Personal Information Disclosure Certificate - Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016

Verity Pane made this Freedom of Information request to Commonwealth Ombudsman

The request was partially successful.

From: Verity Pane

Delivered

Dear Commonwealth Ombudsman,

The Project TV reported on changes proposed by the Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016, namely the power for the Secretary of the Commonwealth Department of Veterans' Affairs (DVA) to "leak" (as Deputy Prime Minister Barnaby Joyce stated in his interview with The Project TV) otherwise protected personal information about a veteran or veterans who complain about DVA's regular abuses of power and unethical behaviour. A copy of that segment and interview are here https://tenplay.com.au/channel-ten/the-p...

The amendments in Schedule 2 of the Bill give essentially wide discretion to the Secretary of DVA to disclose otherwise protected personal information about a veterans or veterans, to anyone the Secretary chooses, that would otherwise be unlawful under the Privacy Act and, potentially, defamation law. All that is required is for the Secretary to claim that doing so is in the "public interest", with no real safety net - the Secretary of DVA has no real objective test to meet in relation to what is the "public interest" - it is whatever he or she claims it to be.

In a statement provide by the Minister of Veterans' Affairs Dan Tehan, to The Project TV (copy to be found here https://tenplay.com.au/channel-ten/the-p... ), the Minister for DVA said:
"This Bill passed the House with bipartisan support after three months of public exposure, which included the scrutiny of two Senate committees, a public hearing and submissions, cross-party consultation, consultation with the Privacy Commissioner and the Commonwealth Ombudsman and consultation with the ex-service community. The government took on board all suggestions and recommendations throughout this process. The Bill has also undergone a privacy impact assessment. We have consulted extensively and nothing will happen without the support of Parliament."

I request copy of all notes, records, minutes, and any and all other documents and records in the Commonwealth Ombudsman's possession and/or control that relate to this "consultation with the Commonwealth Ombudsman" that DVA and/or the Minister for Veterans' Affairs or any other Commonwealth official or Minister had with the Commonwealth Ombudsman (whether directly with the Commonwealth Ombudsman or any staff member of the Commonwealth Ombudsman).

As this matter is being publicly reported and debated in the media, and has generated considerable controversy, this is a matter of public importance and interest, and given these "consultations" are fairly recent events (the subject of Hot Issues Briefs and Question Time Briefs, etc), these records will be well known to OAIC staff and immediately to hand. I therefore argue that it would contrary to the objects and objectives of the Freedom of Information Act to seek to levy charges for access.

Furthermore, I do not consent to the redaction or obfuscation of the names of Commonwealth officials and elected representatives, in any records that fall within the scope of this FOI request.

The routine disclosure of information about the names, and positions of government employees in the conduct of public functions is now an important accepted element in the transparency and accountability framework within which government operates in Australia [see The Freedom of Information Act of Western Australia (Schedule 1 Clause 3) for formally legislated example].

Where 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. This is because the information would reveal only that the public servant was performing their public duties. Such information may often also be publicly available, such as on an agency website.

Where access is sought to information about an individual’s work related activities in the agency, such as the name of an employee, the manner in which the individual carried out tasks or behaviour in the workplace, it is unlikely that disclosure would be unreasonable unless the information went beyond work related matters to the personality, private characteristics or disposition of the individual.

It would not be reasonable for officers to contend that their names when associated with their work is exempt, unless that person already has a protected status due to DVO, covert duties, etc (that is, present a substantive and objective increase in endangerment of the life or physical safety of the person concerned).

As Justice Mahoney held "The fact that a person is a public servant involved in a particular transaction or on duty at a particular time may, in some circumstances, 'involve' the disclosure of information concerning his personal affairs... Whether it will do so will depend upon the circumstances and what is suggested to be 'involved'. In the present case, the suggestion is essentially that what will be disclosed is that the person took part in the passage of information... That, I think, is not part of 'the personal affairs' of the persons in question: it is part only of their public duties and the discharge of them. But it was submitted, at least at one stage, that the mere fact that a person, a public servant, performs a particular function or performed it on a particular occasion is part of 'private affairs'. Special cases apart, I do not think that this would be so. I do not think that it is this which the exemption was intended to protect."

Similarly Justice Kirby stated "It cannot properly be said that the disclosure of the names of... [public sector] employees involved in the preparation of reports... can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned. Nor should there be. It is quite different if personnel records, private relationships, health reports or (perhaps) private addresses would be disclosed. Such information would attract the exemption. But the name of an officer or employee doing no more than the apparent duties of that person could not properly be classified as information concerning the 'personal affairs' of that person. The affairs disclosed are not that person's affairs but the affairs of the agency."

See also:
'HJ' and Australian Federal Police [2015] AICmr 71 (6 November 2015)
Stephen Waller and Department of Environment [2014] AICmr 133

However I have no objection to the redaction of irrevalant information such as the telephone numbers or other contact details of Commonwealth officials or elected officials in any such record that falls within the scope of this FOI request.

Yours faithfully,

Verity Pane

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From: Melissa Hawkins
Commonwealth Ombudsman


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Attachment Acknowledgement of FOI 2017 50016.pdf
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Dear Ms Pane

 

Thank you for your recent FOI request.

 

Please find formal acknowledgment attached.

 

Kind regards

 

Melissa Hawkins

 

Senior FOI officer

COMMONWEALTH OMBUDSMAN

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

 

[3]cid:image001.png@01D1802C.8C6F8450

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.

 

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From: Jim Robertson
Commonwealth Ombudsman


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Dear Ms Pane,

 

Our office is in the process of identifying material relevant to your
request. In the meantime, we are coordinating with the OAIC to assist with
their response to a similar application from yourself.

 

Your email to our office on 4 March emphasised that you would not agree to
the redaction of the names of public servants which appear in the material
matching your request. However, I understand that you have since advised
OAIC that they may exclude contact details of government agency staff
(including telephone numbers and email addresses) from the material.

 

If I understand correctly, then would you also agree that our office can
do the same? This would assist us by reducing the potential complexity of
your application.

 

Kind regards,

 

 

Jim Robertson

 

Commonwealth Ombudsman, Legal and Information Access Team

Suite 2, Level 22/580 George Street Sydney NSW 2000

___________________________________________

Consumer Support: [1]www.privatehealth.gov.au

About Us: [2]www.ombudsman.gov.au

 

From: Melissa Hawkins
Sent: Thursday, 9 March 2017 3:41 PM
To: '[FOI #3185 email]'
<[FOI #3185 email]>
Subject: Acknowledgment of FOI-2017-50016 [SEC=UNCLASSIFIED]

 

Dear Ms Pane

 

Thank you for your recent FOI request.

 

Please find formal acknowledgment attached.

 

Kind regards

 

Melissa Hawkins

 

Senior FOI officer

COMMONWEALTH OMBUDSMAN

Email:    [3][email address]
Website: [4]ombudsman.gov.au

 

[5]cid:image001.png@01D1802C.8C6F8450

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.

 

show quoted sections

References

Visible links
1. http://www.privatehealth.gov.au/
2. http://www.ombudsman.gov.au/
3. mailto:[email address]
4. http://www.ombudsman.gov.au/
5. http://www.ombudsman.gov.au/

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From: Verity Pane

Delivered

Dear Jim Robertson,

On March 21, the Commonwealth Ombudsman (Jim Robertson) posted a response to a related FOI request here at Right To Know (https://www.righttoknow.org.au/request/c... that stated:
"Your email to our office on 4 March emphasised that you would not agree to
the redaction of the names of public servants which appear in the material
matching your request. However, I understand that you have since advised
OAIC that they may exclude contact details of government agency staff
(including telephone numbers and email addresses) from the material."

No such agreement has been made with the OAIC regarding the exclusion of the names of Commonwealth officials carrying out their functions in any documents/records within the scope of this or any of the related FOIs. It appears the OAIC has wrongly advised the Commonwealth Ombudsman as to this material fact.

I refer you to my original FOI request as to why this practice (which is not covered by the legislation, and is indeed contrary to it) is unethical, and why I do not consent to such underhanded opaque measures. Accountability is an foundation cornerstone of public administration, the redaction of the identity of those who produce such records is an antithesis of that (unless the individual involved is a protected person due to special circumstances - i.e. DVO, undercover, etc)

It would be highly unusual to lay out the legal reasons why this practice is unconscionable, to then just reverse position later, with no actual evidence of that. I'm find it difficult anyone could have a reasonable belief to that effect, given the actual correspondence.

Yours sincerely,

Verity Pane

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From: Jim Robertson
Commonwealth Ombudsman

Dear Ms Pane,

 

Thank you for the below response. I could have been clearer in my email,
so I wish to clarify that I am not asking you to agree to the redaction of
names.

 

I was merely double-checking that you agree to the exclusion of contact
details (including telephone numbers and email addresses). Your email of 4
March indicated that you “have no objection to the redaction of irrelevant
information such as the telephone numbers or other contact details of
Commonwealth officials.”

 

Kind regards,

 

 

Jim Robertson

 

Commonwealth Ombudsman, Legal and Information Access Team

Suite 2, Level 22/580 George Street Sydney NSW 2000

___________________________________________

Consumer Support: [1]www.privatehealth.gov.au

About Us: [2]www.ombudsman.gov.au

 

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From: Ombudsman
Commonwealth Ombudsman


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Attachment FOI 2017 50016 decision letter.pdf
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Attachment FOI 2017 50016 documents.pdf
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Dear Ms Pane

 

I attach the following two things in response to your Freedom of
Information request of 4 March 2017:

1.       Decision letter dated 3 April 2017.

2.       Documents released under the decision of 3 April 2017.

 

Yours sincerely

 

Melissa Hawkins

 

Senior FOI officer | Legal and Information Access Team

COMMONWEALTH OMBUDSMAN

Phone:   1300 362 072

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

 

[3]cid:image001.png@01D1802C.8C6F8450

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.

 

show quoted sections

References

Visible links
1. mailto:[CO request email]
2. http://www.ombudsman.gov.au/
3. http://www.ombudsman.gov.au/

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From: Verity Pane

Delivered

Dear Melissa,

Thank you for being the only agency to respond to this FOI properly (DVA and the OAIC and the Minister's Office did not).

I will review the documents and let you know if I seek any review or not shortly, but I think on quick glance it's unlikely review will be required.

Again, thank you for your professionalism.

Yours sincerely,

Verity Pane

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From: Verity Pane

Delivered

Dear Ombudsman,

In reviewing the documents sent, I request clarification to confirm particular exemptions claimed, which given we are only talking about five discrete documents, would not be an unreasonable burden to provide clarification on.

With respect to Document 1 of the Schedule, can I confirm the second redaction (from top of the page) is a claimed s 47C - Deliberative Matter redaction (while the schedule only mentions s 47C for Document 1, other redactions on that page are clearly on s 22 - Irrelevant grounds due to consent for redaction of contact details).

It seems very unclear how the redaction in question can be on claimed s 47C grounds given the redaction's position and context within the document, so would appreciate clarification/confirmation here.

With respect to Document 3, it is worth pointing out the while the DVA Minister's Office did refer repeatedly to the (draft) Rules (to be issued at some later date as a disallowable instrument as vaguely outlined), at no point were any version of these Rules released for public exposure (which was one of the grounds of criticism in the community), it was only the bare bones of the legislation in the Bill (which gave only the broadest brush strokes, leaving the details to yet to be provided subordinate legislation) that were publicly released. Given the public interest disclosures certificates parts of the Bill has since been removed by the Government, following public outcry, and will not proceed, it weakens tenuous arguments made here by the Ombudsman about its views on the public interest test component (this is just advisory comment though, not a request for clarification). That first redaction on the email following the draft Rules also appears incongruous with the exemption category claimed, can you give further context to explain that particular exemption claim.

With respect to Document 4 of the Schedule, this is obviously a series of redactions that are not necessarily able to be treated as uniform. Would the Ombudsman be able to provide more specific commentary with respect to each individual and discrete redaction, and confirm/clarify that all redactions are claimed s 47C - Deliberative Matters and are not a combination of other exemption grounds.

With respect to Document 5 of the Schedule, can you clarify/confirm the 4th, 5th & 6th redactions on that email, with respect to the claimed exemption ground. Again, the context and position of these redactions do not seem to align to the claimed exemption ground.

While the Ombudsman's Office is not legally compelled to provide any clarification requested, such openness on the specific reasons to particular redactions could negate a review request, and save everyone time.

Once again, thank you for being the only agency to respond properly within the statutory deadline.

Yours sincerely,

Verity Pane

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From: Jim Robertson
Commonwealth Ombudsman

Dear Ms Pane,

 

Thank you for your email below. I acknowledge that you are seeking
clarification as to the reasons for redactions in the released documents.

 

We propose to provide you with this clarification within two weeks’ time,
before the close of business on Monday 24 April.

 

Kind regards,

 

 

Jim Robertson

 

Commonwealth Ombudsman, Legal and Information Access Team

Suite 2, Level 22/580 George Street Sydney NSW 2000

___________________________________________

Consumer Support: [1]www.privatehealth.gov.au

About Us: [2]www.ombudsman.gov.au

 

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From: Verity Pane

Delivered

Dear Jim Robertson,

Thank you - I appreciate what clarification you feel you can provide, in relation to the cited redactions (to confirm or clarify the exemption basis, and give more detail on the alleged justifications where details are currently too vague to allow proper evaluation).

Yours sincerely,

Verity Pane

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From: Verity Pane

Delivered

Dear Jim Robertson,

Just to provide further context to specific parts of my clarification request, I thought it best to elaborate on some of the particular queries with regard to deliberative matter exemption claims.

The deliberative document exemption only applies where disclosure of advice, opinion etc, on balance, would be contrary to the public interest, and the objects of the FOI Act require weight to be given to the public interest in disclosure "to promote Australia’s representative democracy by increasing public participation in government processes, with a view to promoting better-informed decision making, and.. by increasing scrutiny, discussion, comment and review of government activities". The mere risk, possibility or chance of negative outcome does not qualify as a reasonable expectation to weigh against this objective. There must, based on reasonable grounds, be at least a real, significant or material likelihood of a negative outcome - the claim alone that "disclosure could impact negatively on the Ombudsman's ability to consult with external agencies, in private, to provide guidance on draft legislation" seems insubstantial given these consultations were the subject of press releases by the Minister and, furthermore, that the legislation had the Ombudsman Office's blessing (by making statements to this effect, as to the contents of these discussions, that effectively weakens such exemption claims now).

Also deliberative matter exemptions can only be made on material that was specifically the product of deliberative processes, and excludes matter merely consisting of expert opinion or analysis (that is, not part of a decision formulation, but just feedback/opinion/analysis) as well as any decisions or conclusions reached at the end of a deliberative process, as this is not deliberative matter as a decision or conclusion does not display the 'thinking processes' of an agency; and documents recording decisions made by the agency are not deliberative in nature.

In large part, the redactions cited do not appear to be deliberative matter, that is inherently part of a decision making process, based on the information provided (the statement of reasons is very broad, and doesn't link well to certain individual redactions). Given the small number of documents involved, it would therefore be useful and not burdensome for your agency to just provide some more direct clarification (as it is possible, with further information, to resolve these inconsistencies - so additional clarification would be a benefit to us both).

Yours sincerely,

Verity Pane

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From: Jim Robertson
Commonwealth Ombudsman


Attachment FOI 2017 50016 Pane amended schedule.pdf
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Dear Ms Pane,

 

I am writing to provide clarification in response to the points raised in
your emails to our office on 5 and 13 April 2017.

 

With respect to Document 1, you are correct that s 47C was not the only
relevant provision to the redactions in this document. The second and
third redactions are indeed deletions made under section 22 (1) (b) of the
FOI Act. Section 22 was also the reason for the redaction of information
in Document 2 and the first 2 redactions to Document 5.

 

The relevance of section 22 to the redacted copies of the documents should
have been indicated in our schedule at attachment B to the decision
letter. We apologise for the confusion caused by this omission.

 

With respect to Document 3, you have sought further context on the first
redaction appearing in an email that followed the draft rules. We confirm
that section 47C is the basis upon which the first redaction has been
applied.

 

The title of this email referred to a particular provision in the draft
rules. Attachment A to our decision letter still accurately reflects our
reasoning for the redaction. It remains our view that section 47C applies
because the Department only supplied our office with this draft for the
purpose of consultation. References to its content, which was likely to
and later did in fact undergo changes, are therefore deliberative in
nature.

 

With respect to Document 4, the series of redactions that you refer to
could not be applied in a more uniform manner due to the Adobe software
used for redactions and its limitations in relation to handwritten notes.
We confirm that all redactions in this document are pursuant to section
47C.

 

With respect to Document 5, we confirm that (apart from the first 2
redactions, as discussed above) all other redactions have been made
pursuant to section 47C. These are references to distinct provisions in
the draft rules supplied to our office by the Department for the purpose
of consultation only and are therefore deliberative material.

 

I hope this email clarifies our decision in relation to your request.

 

Kind regards,

 

 

Jim Robertson

 

Commonwealth Ombudsman, Legal and Information Access Team

Suite 2, Level 22/580 George Street Sydney NSW 2000

___________________________________________________

[1]www.ombudsman.gov.au

 

From: Jim Robertson
Sent: Monday, 10 April 2017 2:09 PM
To: Verity Pane <[FOI #3185 email]>
Subject: RE: Your FOI Request - Our Ref: FOI-2017-50016 [SEC=UNCLASSIFIED]

 

Dear Ms Pane,

 

Thank you for your email below. I acknowledge that you are seeking
clarification as to the reasons for redactions in the released documents.

 

We propose to provide you with this clarification within two weeks’ time,
before the close of business on Monday 24 April.

 

Kind regards,

 

 

Jim Robertson

 

Commonwealth Ombudsman, Legal and Information Access Team

Suite 2, Level 22/580 George Street Sydney NSW 2000

___________________________________________

Consumer Support: [2]www.privatehealth.gov.au

About Us: [3]www.ombudsman.gov.au

 

show quoted sections

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From: Verity Pane

Delivered

Dear Jim Robertson,

Thank you for the additional clarification Jim, and your further explanatory comments. They were much appreciated.

While I consider there are some aspects which don't quite align with the exemption, I have decided not to seek further review and leave the FOI here, in recognition of the fact that the Commonwealth Ombudsman's Office was the only agency to met the statutory deadline properly, has been willing to provide further explanation, and has not acted in gross bad faith in dealing with this FOI (for which at least some credit has to be extended).

What is clear is the Ombudsman's Office was called in very late for comment on DVA's sponsored bill and unreleased draft rules, for which the Ombudsman's Office noted that improvements were needed, and that great sensitivity exists regarding the details that weren't part of the Bill (and inferences can be drawn from that, mainly that it was not good public policy, which would be a major reason it was abandoned once people started asking probing questions).

You can now close this FOI off, and thank you again for not being too outrageous in dealing with this matter.

Yours sincerely,

Verity Pane

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