Consultations relating to 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 Department of Veterans' Affairs

The request was partially successful.

From: Verity Pane

Delivered

Dear Department of Veterans' Affairs,

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 DVA's possession and/or control that relate to this "consultations with the Privacy Commissioner, and the Commonwealth Ombudsman, and consultation with the ex-services community [which the Minister claimed was extensive]" that DVA and/or the Minister for Veterans' Affairs or any other Commonwealth official or Minister had with the the aftforenamed parties (whether directly by the Secretary or Minister for DVA or any staff member of DVA). In particular I seek copy of the Privacy Impact Statement, in full, that it was claimed by the Minister to have been done, and details as to who performed it, how much they were paid, and any records of correspondence between the party that carried out this activity and DVA, as to how this process was to be carried out, and any revisions or re-writes or modifications requested by DVA employees before the final version was provided.

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: FOI
Department of Veterans' Affairs

Dear Ms Pane,

Freedom of Information Request: FOI 14364

I refer to your request for access to documents under the Freedom of Information Act 1982 (the FOI Act). Your request is in the following terms:

I request copy of all notes, records, minutes, and any and all other documents and records in DVA's possession and/or control that relate to this "consultations with the Privacy Commissioner, and the Commonwealth Ombudsman, and consultation with the ex-services community [which the Minister claimed was extensive]" that DVA and/or the Minister for Veterans' Affairs or any other Commonwealth official or Minister had with the the aftforenamed parties (whether directly by the Secretary or Minister for DVA or any staff member of DVA). In particular I seek copy of the Privacy Impact Statement, in full, that it was claimed by the Minister to have been done, and details as to who performed it, how much they were paid, and any records of correspondence between the party that carried out this activity and DVA, as to how this process was to be carried out, and any revisions or re-writes or modifications requested by DVA employees before the final version was provided.

We received your request on 4 March 2017 and the 30 day statutory period for processing your request commenced from the day after that date. You should therefore expect a decision by 3 April 2017. The period of 30 days may be extended if we need to consult third parties, impose a charge or for other reasons. We will advise you if this happens.

You will be notified of any charges in relation to your request as soon as possible, before we process any requested documents or impose a final charge.

We will contact you using the email address you have provided. Please advise if you would prefer us to use an alternative means of contact.

If you have any questions, please contact me using the following details:

Post: GPO Box 9998 CANBERRA ACT 2601
Facsimile: (02) 6289 6337
Email: [DVA request email]

Yours sincerely

Shihara Caner
Information Access Officer
Information Law
Legal Services, Assurance & Deregulation

6 March 2017

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From: FOI
Department of Veterans' Affairs

Dear Ms Pane,

Freedom of Information Request: FOI 14364

I refer to your request under the Freedom of Information Act 1982.

We received your request on 4 March 2017 and the 30 day statutory period for processing your request commenced from the day after that date. However, section 15(6) of the FOI Act allows for an additional 30 days to process the request if the Department needs to consult with third parties about documents that contain business information about those third parties.

The scope of your request covers documents containing the personal information of a third party. The Department considers it necessary to consult with this third party under section 27A of the FOI Act. As a result, section 15(6) of the FOI Act allows for an additional 30 days to process your request. You should now expect a decision by 3 May 2017.

We will contact you using the email address you have provided. Please advise if you would prefer us to use an alternative means of contact.

If you have any questions, please contact me using the following details:

Post: GPO Box 9998 CANBERRA ACT 2601
Facsimile: (02) 6289 6316
Email: [DVA request email]

I apologise for the delay in providing you with notification of this extension.

Yours sincerely

Frank White
Assistant Director
Information Law
Legal Services & Assurance

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From: Verity Pane

Delivered

Dear Frank,

I refer you to the response of the OAIC in the related FOI (https://www.righttoknow.org.au/request/w... ), which the OAIC transferred (incorrectly) to you, that third party consultation extensions only apply to consultations with parties external to the Federal Government:
"Under the FOI Act, agencies are able to extend the timeframe to consult
with third parties. The third parties referred to in the FOI Act include
third party individuals and businesses. Consultation with other Australian
Government agencies does not extend the processing timeframe. The
timeframe to respond to that part of your request remaining with the OAIC
will therefore not be extended. I note a decision on your FOI request is
due on 3 April 2017."

I do not consent to any extensions, and giving these records sought are internal government documents, no grounds appear to support any legal basis for extension. If you have evidence to support this, you'll need to provide it, but at the moment it seems like just unethical stalling.

I note DVA and yourself have been criticised before for such unethical tactics. I would appreciate if you dealt with this matter honestly, and not follow DVA's dishonourable track record here.

Yours sincerely,

Verity Pane

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From: Verity Pane

Delivered

Dear Frank,

To cease this unethical stalling, and given I did not request the personal information of any party (and the names of public servants and other Commonwealth officials carrying out their official duties is not personal information as per the legal decisions referred to earlier), I consent to any "personal information" as defined by the Privacy Act and court rulings being redacted (just note which documents within scope that this applies to, specifically), rather than you hold hostage the bulk of the documents in scope.

Given this consent, DVA no longer has any basis to continue to refuse to meet the statutory deadline it was always required to.

Yours sincerely,

Verity Pane

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From: Verity Pane

Delivered

Dear Frank,

As you have continued to unlawfully withhold this FOI decision, even with consent given to redact any PI you claim is the basis for further delay, said consent is revoked (given you clearly are acting in bad faith).

Yours sincerely,

Verity Pane

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From: FOI
Department of Veterans' Affairs


Attachment Documents as provided to the applicant.zip
6.4M Download

Attachment FOI 14364 14365 and 14536 Statement of Reasons.pdf
2.8M Download View as HTML


Dear Ms Pane

 

Freedom of Information Requests: FOI 14364, 14365 and 14536

 

I refer to your recent requests under the Freedom of Information Act 1982.
Please find attached the Statement of Reasons and documents released to
you.

 

If you have trouble viewing the documents, please don’t hesitate to
contact us.

 

Kind regards,

 

Nadia Vittoria

Legal Officer

Information Law

Legal Services & Assurance

 

3 May 2017

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Link to this

From: FOI
Department of Veterans' Affairs


Attachment Documents as provided to the applicant.zip
6.4M Download

Attachment FOI 14364 14365 and 14536 Statement of Reasons.pdf
2.8M Download View as HTML


Dear Ms Pane

 

Freedom of Information Requests: FOI 14364, 14365 and 14536

 

I refer to your recent requests under the Freedom of Information Act 1982.
Please find attached the Statement of Reasons and documents released to
you.

 

If you have trouble viewing the documents, please don’t hesitate to
contact us.

 

Kind regards,

 

Nadia Vittoria

Legal Officer

Information Law

Legal Services & Assurance

 

3 May 2017

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From: Verity Pane

Delivered

Dear Department of Veterans' Affairs,

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

I am writing to request an internal review of Department of Veterans' Affairs's handling of my FOI request 'Consultations relating to Waiver of Privacy Act Personal Information Disclosure Certificate - Veterans’ Affairs Legislation Amendment (Digital Readiness and Other Measures) Bill 2016'.

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,

Verity Pane

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From: FOI
Department of Veterans' Affairs


Attachment 170518 Letter.pdf
44K Download View as HTML


Dear Ms Pane,

Please see attached our letter of 18 May 2017.

Kind regards,

Alexander Gent
Legal Officer
Information Law
Legal Services & Assurance Branch
Department of Veterans’ Affairs | www.dva.gov.au
ph (02) 6289 6581 | ext 616581 | e [email address]

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From: Verity Pane

Delivered

Dear FOI,

An internal review first.

Yours sincerely,

Verity Pane

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Verity Pane left an annotation ()

Seems DVA staff don't read in full the emails they receive via RtK. I clearly stated previously I sought internal review - using those exact words - only for DVA to write days after wanting to know if I wanted Internal Review or IC Review. Since I explicitly stated I wanted an internal review, this was a rather redundant and silly delay by DVA.

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From: FOI
Department of Veterans' Affairs

Dear Ms Pane

Freedom of Information Internal Review: IR 15641

I refer to your request for internal review under the Freedom of Information Act 1982 (the FOI Act). You have sought a review of the decision of 3 May 2017.

We received your request for internal review on 14 May 2017 and the 30 day statutory period for reviewing the primary decision commenced the day after that date. You should therefore expect a decision by 13 June 2017. The internal review will be conducted by a different officer from the original decision-maker.

We will contact you using the email address you have provided. Please advise if you would prefer us to use an alternative means of contact.

If you have any questions, please contact me using the following details:

Post: GPO Box 9998 CANBERRA ACT 2601
Facsimile: (02) 6289 6337
Email: [DVA request email]

Kristy Egan
Director
Information Law
Legal Services, Assurance & Deregulation

19 May 2017

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From: FOI
Department of Veterans' Affairs


Attachment IR 15641 Reasons for decision partial release FINAL.pdf
1.2M Download View as HTML

Attachment Combined documents marked up for IR decision Redacted.pdf
6.8M Download View as HTML


Dear Ms Pane

 

Internal Review Request: IR 15641

 

I refer to your request for an internal review under the Freedom of
Information Act 1982 (FOI) Act (IR 15641)

 

Please find attached the statement of reasons and documents released to
you.

 

Kind regards

 

Alexander Gent

Legal Officer
Information Law

Legal Services & Assurance Branch
Department of Veterans’ Affairs | [1]www.dva.gov.au
ph (02) 6289 6581 | ext 616581 | e [2][email address]

 

References

Visible links
1. http://www.dva.gov.au/
2. mailto:[email address]

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Verity Pane left an annotation ()

Some revisions, mostly irrelevant material added, but surprisingly some redactions applied to material previously released (which I've not seen before, rather novel!).

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From: Verity Pane

Delivered

Dear Alexander,

I confirm receipt of your revised decision. This exhausts the processes available here on RtK, so all further steps will be communicated to you as required.

Yours sincerely,

Verity Pane

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Verity Pane left an annotation ()

For the interest of others, who may be refused access to information, on claims of unreasonable disclosure of the personal information of others, it may be of interest to you to look up Smallbone v New South Wales Bar Association [2011] FCA 1145 (Federal Court of Australia, Yates J, 6 October 2011) to see some limitations to this claim. In short, although the identities of the providers of information may be able to be redacted (or anything that may cause them to be identified), if that information can be reasonably provided in a deidentitified way,
the Court held this would not have an unreasonable impact on the privacy of others (so is highly relevant to such FOI exemption claims)

Slightly off topic, but that case is also interesting because it's utilisation of the Privacy Act's s 98 powers, which is another form of redress mechanism available to individuals who seek access to materials about them (that rarely gets mentioned as an avenue of review).

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Things to do with this request

Anyone:
Department of Veterans' Affairs only: