Cost of External Legal Services Expenditure on Work, Health and Safety Act 2012 implications

Verity Pane made this Freedom of Information request to Department of Veterans' Affairs

Response to this request is long overdue. By law, under all circumstances, Department of Veterans' Affairs should have responded by now (details). You can complain by requesting an internal review.

From: Verity Pane

Delivered

Dear Department of Veterans' Affairs,

Under FOI I seek copy of the invoice or invoices for external legal services expenditure by the Department, for advice received in FY2011/12, in relation to external legal advice sought by the Department about the implications of the publication of departmental correspondence reproduced on websites not controlled by the Department, by veterans, for the Department under the incoming Work, Health and Safety Act 2012 (Cth).

I understand from copies of Ministeral Briefs I have recently received copy of that such external legal services were commissioned by the Department in late 2011 - early 2012.

Was there a reason the Department did not make use of its own legal resources for interpretation of Commonwealth legislation?

Can you also advise if the practice of engaging expensive external legal services for statutory interpretation is a common practice in the Department.

Yours faithfully,

Verity Pane

Link to this

From: Verity Pane

Delivered

Dear Department of Veterans' Affairs,

DEEMED REFUSAL

The obligation on an agency or minister to notify an applicant that a request has been received, and to make and notify a decision on the request within the statutory timeframe, commences upon receipt of a request that meets the formal requirements in ss 15(2),(2A).

Your Department has failed to do so.

An agency or minister must, as soon as practicable, and within 14 days of receiving a request, take all reasonable steps to enable the applicant to be notified that the request has been received (s 15(5)(a)). This requirement will be met by sending a notice of receipt to the contact address provided by the applicant. The 14-day timeframe commences on the day after the request is received by or on behalf of an agency or minister’s office.

That statutory date expired on 1 August 2018, without acknowledgement being given.

Similarly, an agency or minister must, as soon as practicable, and no later than 30 days after receiving a request, take all reasonable steps to enable the applicant to be notified of a decision on the request (s 15(5)(b)). Section 15(5)(b) provides that the 30-day processing period commences on the day after the day the agency or minister is taken to have received a request that meets the formal requirements of s s15(2), (2A).

That statutory date expires today on 17 August 2018, and as it is 11:30pm right now, there is no likelihood of any decision being given today.

A ‘deemed refusal’ occurs if the time for making a decision on a request for access to a document has expired and an applicant has not been given a notice of decision. If this occurs, the principal officer of the agency or the minister is taken to have personally made a decision refusing to give access to the document on the last day of the ‘initial decision’ period (s 15AC). A notice of the deemed decision is taken to have been given on the last day of the decision period.

The consequence of a deemed refusal is that an applicant may apply for IC review (s 54L(2)(a)). An applicant or third party can also apply for IC review of a deemed affirmation of a decision on internal review (ss 54L(2)(b), 54M(2)(b)). In addition, once the time has expired and there is a deemed decision, the agency or minister cannot impose a charge for access.

Where an access refusal decision is deemed to have been made before a substantive decision is made, the agency or minister continues to have an obligation to provide a statement of reasons on the FOI request. This obligation to provide a statement of reasons on the FOI request continues until any IC review of the deemed decision is finalised. The competing view — that a decision maker is functus officio if a deemed decision arises — would have the consequence that an applicant’s right of access under the FOI Act would be impeded through delay on an agency’s part and could only be revived by an application for IC review. This result would be contrary to the objectives and requirements of the FOI Act.

Yours faithfully,

Verity Pane

Link to this

From: Verity Pane

Delivered

Dear Department of Veterans' Affairs,

Still yet to receive an acknowledgement or response to this FOI, despite it being confirmed you received both the original FOI and notice of deemed refusal.

I have made an IC Review referral to the OAIC, but as you would be aware (and was explicitly stated to you), this does not relief you of your obligations under the Act, which you have explicitly ignored.

Yours faithfully,

Verity Pane

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Verity Pane left an annotation ()

Unfortunately the arrogance of this agency towards FOI is on show here, which won’t help them going forward.

Link to this

From: Information.Law
Department of Veterans' Affairs


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Good morning Verity,

 

Thank you for your email, I acknowledge receipt of your emails received on
18 July 2018, 17 August 2018  and 24 August 2018.

 

I also note we have been advised of your IC review. We are currently
taking steps to process your request and we will keep you up to date on
its progress.

 

Kind regards,

               

Information Law

Legal Services & Assurance Branch

Department of Veterans’ Affairs

 

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From: Verity Pane

Delivered

Dear Unnamed Officer,

It’s a pity you didn’t take those steps during the actual statutory period, requiring now additional Commonwealth resources to be expended due to your agency’s behaviour, on what was a very simple FOI, which as stated, was confirmed as having been received by your agency on the respective dates they were sent, but for which for reasons yet to be explained, your agency ignored.

I note you have not provided any date these steps you are taking belatedly now, will be completed, or even any estimate to that end.

As mentioned earlier, the obligation on this agency to rectify this deemed refusal remains with the agency and it is not subject to stoppage due to IC Review referral because of the deemed refusal.

Due to limited Commonwealth resources, agencies should not increase the burden to the Commonwealth by engaging in unethical practices, that then subsequently invite review and correction. Better to at least meet the minimum standards under the FOI Act, which are far from taxing.

Yours sincerely,

Verity Pane

Link to this

From: Verity Pane

Delivered

Dear Unnamed DVA Officer and the OAIC,

Despite the standing directive of the Information Commissioner Direction as to certain procedures to be followed in IC reviews given under section 55(2)(e)(i) of the Freedom of Information Act 1982, it appears that DVA has not only breached s 15(5)(a) and s 15(5)(b) of the Freedom of Information Act, but is now breaching this s 55(2)(e)(i) directive in addition to model litgant obligations under the Legal Services Directions 2017 that extends to Commonwealth entities involved in merits review proceedings.

Despite almost a month passing since the deemed refusal, of which an IC Review under s 54L(2)(a) was made to the OAIC on 18 August 2018, and for which the OAIC commenced preliminary enquiries on 20 August 2018 (thereby placing on DVA under the Information Commissioner’s directive the requirement to respond within one week to explain why breaches of s 15(5)(a) and s 15(5)(b) occurred, with copy to be provided to the Applicant or at least partial copy), this FOI still remains outstanding and no explanation for the unlawful delay has been provided.

This arrogant flouting of the FOI Act and the Information Commissioner’s Directive by DVA is outrageous and an abuse of process.

——————

Dear Carl,

In respect of this IC Review of the deemed refusal of DVA, I would like to draw your attention to the OAIC’s own Direction as to certain procedures to be followed in IC reviews.

This direction is given under section 55(2)(e)(i) of the Freedom of Information Act 1982.

The relevant parts are reproduced below.

General procedure in relation to deemed refusals

4.1 Where an application for IC review is made on an FOI request that is deemed to have been refused under ss 15AC(3), 51DA(2) or 54D(2) of the FOI Act, the Information Commissioner will undertake preliminary inquiries pursuant to s 54V of the FOI Act. In undertaking preliminary inquiries, the Information Commissioner will require the agency or minister to provide an explanation regarding the status of the FOI request and, if the request is not finalised, an estimated date for a decision on the request.

4.2 Agencies and ministers will have one week to respond to the Information Commissioner’s preliminary inquiries.

4.3 If no response is received in that time or it appears that there may be further unreasonable delay in the processing of the FOI request, the Information Commissioner will commence IC review and require the agency or minister to provide a statement of reasons pursuant to s 55E of the FOI Act. The agency or minister will be required to provide the statement of reasons within the timeframe specified in the notice.[See FOI Guidelines at [10.61] – [10.62]]

4.4 The Information Commissioner may, as appropriate, issue a notice pursuant to s 55E of the FOI Act together with a Notice to Produce under s 55R of the FOI Act to ensure that the statement of reasons is accompanied by relevant documents.

General procedure in relation to submissions made during an IC review

5.1 All parties to an IC review will be provided with a reasonable opportunity to present their case on the IC review through written submissions.

5.2 The Information Commissioner will share an agency’s or minister’s submissions with the applicant unless there are compelling reasons not to.[See FOI Guidelines at [10.104]]

5.3 If an agency or minister wishes to make a submission in confidence, a request for the submission to be treated in confidence must be made ahead of providing the submission. Any request for confidentiality must be accompanied by reasons to support such a claim, including whether the submission would reveal the contents of the documents at issue.

5.4 Where the Information Commissioner accepts a submission in confidence, agencies and ministers must provide a version of the submission that can be shared with the applicant.[See FOI Guidelines at [10.104]]

5.5 Where the Information Commissioner makes a decision on IC review pursuant to s 55K of the FOI Act, the Information Commissioner will quote or summarise an agency or minister’s non-confidential submissions in the published decision. If a confidential submission is relied on by the Information Commissioner in making a decision on the IC review, this will be noted in the decision without revealing the confidential material.

5.6 In providing submissions, agencies and ministers should be mindful of their obligation to assist the Information Commissioner pursuant to s 55DA of the FOI Act and their onus under s 55D of the FOI Act. As it may be appropriate for an IC review to proceed to a decision under s 55K of the FOI Act on the basis of a response to a notice of IC review, it is in agencies’ and ministers’ interests to put forward all relevant contentions and supporting reasons in response to the notice of review.[See FOI Guidelines at [10.74]]

5.7 The Information Commissioner may seek further submissions from an agency or minister as appropriate. However, agencies and ministers should be aware that if they do not make submissions when an opportunity to do so has been provided, the matter may proceed to a decision under s 55K of the FOI Act without any further opportunity to make submissions. It is not open to agencies and ministers to reserve their right to make submissions at a later date.

Non-compliance with this Direction

6.1 In the event of non-compliance with this Direction, the Information Commissioner may proceed to make a decision under s 55K of the FOI Act on the basis that the agency or minister has failed to discharge their onus under s 55D of the FOI Act.

6.2 In addition, as the model litgant obligation under the Legal Services Directions 2017 extends to Commonwealth entities involved in merits review proceedings, failure to adhere to the requirements of this Direction may amount to non-compliance with the model litigant obligation.

———

It appears the OAIC has failed to adhere to its own Directive, with no copy of DVA response with respect to the deemed refusal having been provided to me within the week since the OAIC contacted DVA about the IC Review, indeed no transparency at all.

This is rather disappointing that the OAIC is ignoring its own formal directives, and indeed there has been no progress on the outstanding deemed refusal at all by DVA, despite almost a month passing.

Regards

Verity

————

From: FOIDR <[email address]>
Sent: Monday, 20 August 2018 9:35 AM
To: Verity Pane
Subject: RE: Attn: IC Review - FOI made on DVA on 18 July 2018 - No Response - Deemed Refusal [SEC=UNCLASSIFIED]

Our reference: MR18/00607

Ms Verity Pane
Sent by email

Your IC review application about an FOI decision by the Department of Veterans' Affairs

Dear Ms Pane

Thank you for your correspondence seeking to lodge an IC review application with the Office of the Australian Information Commissioner (the OAIC) about the Department of Veterans' Affairs (the Department).

Please note:

The OAIC has initiated preliminary inquiries with the Department, we will contact you once the Department responds to advise the next steps.

Your IC review application will be shared with the Department as part of the IC review process unless you have specifically requested otherwise.

If your circumstances change, or your request has been resolved directly with the Department, please advise us by email as soon as practicable.

Information about the way we handle your personal information is available in our privacy policy.

Should you wish to follow up on this matter, please contact the OAIC enquiries line on 1300 363 992 or email [email address] and quote the reference number at the top of this email.

Yours sincerely

Carl English | Assistant Review and Investigation Officer | Freedom of Information Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218 SYDNEY NSW 2001| www.oaic.gov.au
Phone: +61 2 9284 9745 | E-mail: [email address]

———

From: Verity Pane
Sent: Saturday, 18 August 2018 12:10 AM
To: Enquiries <[email address]>
Subject: Attn: IC Review - FOI made on DVA on 18 July 2018 - No Response - Deemed Refusal

Attention Information Commissioner FOI Review Section,

On the 18th July 2018 I made a Freedom of Information request to the Department of Veteran Affairs (DVA) via Right to Know https://www.righttoknow.org.au/request/c...

Despite the obligations of s 15(5)(a), no acknowledgement was given within fourteen days, although another FOI made via Right to Know to DVA on the same date was acknowledged. I have enquired with Right to Know and they confirmed DVA had received the email the system sent.

Similarly DVA failed to satisfy s 15(5)(b), failing to make a decision with the 30 day statutory processing period. There was no extension to the processing period, as there was no practical refusal notification (although my other FOI received one only one day before the statutory period expired, and arguably was an abuse of process by the Department, but is a matter seperate from this IC Review application) nor notification of any consultation period or other statutory activity that would have paused the normal statutory processing period.

I note DVA generally engages in unethical behaviour to stall and delay FOIs, and that stonewalling on this FOI most likely the reason DVA has ignored it.

Regardless, this FOI has now proceeded to activating review rights under s 54L(2)(a) as a deemed refusal is a access refusal decision. Despite this, DVA continues to have an obligation to provide a statement of reasons on the FOI request. This obligation to provide a statement of reasons on the FOI request continues until this IC review of the deemed decision is finalised, and is not stayed by IC Review. This potentially allows for substitution should the parties agree.

I would submit now, and ask the Information Commissioner to acknowledge, that it would be inappropriate for the Information Commissioner to extend or accept an application from DVA to extend the statutory processing period, given their is confirmation that DVA did receive the FOI made, but for reasons we can only draw inferences about, intentionally ignored it.

The scope of this FOI is limited to a very isolated period of time, and to a very narrow subject, based on information published in a previous Infornation Commissioner Determination. The complexity is fairly straightforward, and not resource intensive, and the relevant documents will be held in only one limited area of the Department (the Legal Services area).

An extension of time is not appropriate in these circumstances and the Commissioner should encourage DVA to met its obligations without further delay, given causing delay is a frequently used tactic by this Department.

Sincerely

Ms V Pane, BA MPhil

Link to this

From: Verity Pane

Delivered

Dear Unnamed Officer,

As you would be aware, DVA is required to comply with the Information Commissioner’s Direction as to certain procedures to be followed in IC reviews, issued under section 55(2)(e)(i) of the Freedom of Information Act 1982.

When the OAIC commenced its preliminary enquiries (which occurred no later than 20 August 2018, given that is when the OAIC notified me that they were already underway), DVA was supposed to only have one week to respond to the OAIC, explaining the reasons why DVA had breached s 15(5)(a) and s 15(5)(b) and when it would complete this outstanding FOI.

However, the OAIC has failed to follow its own Directive, and appeared to have let you continually delay resolution of this now long outstanding FOI (now entering its third month!).

According to the OAIC, you were allegedly supposed to have issued the outstanding FOI decision today (despite that the Directive put that onus on you some weeks ago), but surprise surprise you have yet again failed to do so, yet again causing another unlawful delay to occur.

I note DVA has persistently and systematically caused avoidable delays, in response to FOIs I have made, which smacks of an intentional form of harassment.

As it seems clear that this matter will end up in further review, you should be aware that I will cite these behaviours by your agency as supporting evidence of abuse of office.

For your information I enclose my correspondence with the OAIC in this matter, who it is clear you are dodging as well.

Yours sincerely,

Verity Pane

————

From: Verity Pane
Sent: Friday, 14 September 2018 7:51:53 PM
To: FOIDR
Subject: Re: Attn: IC Review - FOI made on DVA on 18 July 2018 - No Response - Deemed Refusal [SEC=UNCLASSIFIED]

Dear Carl,

On 20 August 2018, you wrote to me to advise that the OAIC had commenced it’s preliminary enquiries of DVA with respect to this deemed refusal FOI.

With the greatest respect, I again draw your attention to the OAIC’s own Direction as to certain procedures to be followed in IC reviews which the OAIC has published here https://www.oaic.gov.au/freedom-of-infor....

This direction, given under section 55(2)(e)(i) of the Freedom of Information Act 1982, is unambiguous about the required steps to be followed by the OAIC.

Para 4.1 makes explicit that “[w]here an application for IC review is made on an FOI request that is deemed to have been refused under ss 15AC(3), 51DA(2) or 54D(2) of the FOI Act, the Information Commissioner will undertake preliminary inquiries pursuant to s 54V of the FOI Act. In undertaking preliminary inquiries, the Information Commissioner will require the agency or minister to provide an explanation regarding the status of the FOI request and, if the request is not finalised, an estimated date for a decision on the request.”

Similarly para 4.2 explicitly states, that once the OAIC has commenced preliminary enquiries, which the OAIC did no later than 20 August 2018 (given that is when you saw fit to advise me that preliminary enquiries where underway), that “Agencies and ministers will have one week to respond to the Information Commissioner’s preliminary inquiries“.

It is explicit in para 4.3 of that Directive that “If no response is received in that time or it appears that there may be further unreasonable delay in the processing of the FOI request, the Information Commissioner will commence IC review and require the agency or minister to provide a statement of reasons pursuant to s 55E of the FOI Act. The agency or minister will be required to provide the statement of reasons within the timeframe specified in the notice.[See FOI Guidelines at [10.61] – [10.62]]”

As the OAIC’s preliminary enquiries could not have commenced any later than 20 August 2018, given its notice to me, that one week period expired Monday 27 August 2018. However, you state in your email today that despite it being almost a month after the OAIC commenced it’s preliminary enquiries, the OAIC has yet to require DVA to provide a statement of reasons pursuant to s 55E, or indeed even seek submissions from DVA, despite that in accordance with this s 55(2)(e)(i) Directive, a formal IC Review process should have commenced no later than Tuesday 28 August 2018, given DVA did not rectify the breach of s 15(5)(b) within the week of preliminary enquiries having commenced (given such preliminary enquiries could not have occurred any later than the notice given to me_.

It does not appear that the OAIC required DVA to specific an estimated date for a decision, because it certainly has not communicated that with me. The throwaway line that maybe I’ll get a decision two months after the FOI was made, today, clearly has not happened, and you clearly are not even able to get a response from DVA of late.

In other words, it appears how and when this deemed refusal FOI gets resolved has been abandoned by the OAIC, to be left up to the discretion of DVA, for whenever they feel like, directly contrary to the obligations under the OAIC’s own directives!

The OAIC hasn’t bothered to get DVA to explain why it ignored this FOI in flagrant breach of the FOI Act in the first place, let alone to utilise the tools the OAIC has to get DVA to comply with these breached statutory obligations, to remedy.

Simply put, if the OAIC ignores it’s own rules and requirements, why would an agency willing to openly flaunt FOI statutory obligations feel any incentive to remedy these breaches, especially when the OAIC appears content to abandon its regulatory duties.

I would encourage the OAIC to adhere to its own directives, rules and policies, and not just leave it up to DVA as to when these breaches of the FOI Act will be resolved, as it is clear there has been a persistent ongoing and unethical series of delays, which have no logical basis, and merely are the expression of DVA’s contempt for the FOI Act.

Regards

Verity Pane

————
From: FOIDR <[email address]>
Sent: Friday, 14 September 2018 4:06:15 PM
To: Verity Pane
Subject: RE: Attn: IC Review - FOI made on DVA on 18 July 2018 - No Response - Deemed Refusal [SEC=UNCLASSIFIED]

Dear Ms Pane

Thank you for your email. I apologise for the delay in my response.

The Department has responded to our inquires and provided advice that a decision is expected by close of business today. I have been unable to get in contact with the relevant officer today to confirm the decision will be provided as advised. Our inquiries are continuing.

The OAIC has not sought submissions from Department at this stage. Submissions are generally sought at a later stage in the IC review process. You will be given a copy of the Department’s submissions at this time unless there are compelling reasons not to, as noted in the practice direction.

Kind regards

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Carl English | Assistant Review Officer
Freedom of Information Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | oaic.gov.au
+61 2 9284 9745 | +61 412 345 678 | [email address]
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From: INFORMATION.LAW
Department of Veterans' Affairs


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Attachment FOI 24050 Decision and Statement of Reasons.pdf
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Good evening Verity Pane,

 

FOI 24050 Decision and Statement of Reasons

 

I refer to your FOI request received by the Department on 18 July 2018.
Please find attached a decision in response to your request, which also
apologises for the delay in processing your request.

 

Kind Regards,

 

Information Law Team

Department of Veterans’ Affairs
E: [1][email address] | W: [2]www.dva.gov.au

 

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

 

 

 

 

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Link to this

From: Verity Pane

Delivered

Dear Unnamed Officer,

How interesting. Despite breaching s 15(5)(a) and s 15(5)(b) of the Freedom of Information Act, by your high handed and arrogant conduct in ignoring this FOI, causing deemed refusal, and only bothering to engage some time after this FOI was referred to the OAIC for IC Review (and even then missing the deadline for response you told the OAIC you’d provide it by by some time), you have claimed the document does not exist.

One wonders, if that was to be believed, why DVA response was overdue months, given there were no tasks for you to complete beyond the search, which would have not taken more than a hour, given the limited areas specified to be searched in the FOI.

How ironic too that DVA has offered no explanation or apology for these intentional and continual delays, given that.

I am very interested in DVA’s claims that these financial transaction documents do not exist, because the copy of the internal DVA document I possess confirms that the external legal services provider work was indeed commissioned by DVA and carried out by the external legal services provider.

It seems the latest DVA corrupt conduct is to knowingly deny documents it knows exist, in explicit breach of the enforceable legal right under FOI to obtain such documents, continuing DVA’s opaque cancerous culture of thumbing it’s nose at the law and any semblance of ethics.

Such as assessment is supported by another recent DVA FOI decision, again delayed, in https://www.righttoknow.org.au/request/c...

In that decision, in which only 3.5 pages of documents out of 53 pages were released (and one of those pages was essentially a copy of the other, meaning only 2.5 pages were released), DVA stated no other documents existed - despite the pages released (which where not DVA’s documents at all, but some preliminary papers of the contractor mostly irrelevant to the FOI scope) explicitly referring to documents held by the DVA project team the FOI scope was targeted to.

So even those those pages reviewed and released by DVA explicitly contradicted the delegate’s claims, DVA still knowingly lied in a brazen and offensive high handed act of corrupt conduct.

Still, it would appear there is no law nor moral the DVA Information Law area won’t openly thumb its nose at, no gutter too low for it to occupy.

So, let us proceed to the next step, until eventually you run out of opportunities to knowingly breach FOI law.

I therefore apply for Internal Review on the basis that the copy of the internal DVA document I possess confirms that such documents do exist, contrary to your knowingly fraudulent claims.

Yours sincerely,

Verity Pane

Link to this

From: INFORMATION.LAW
Department of Veterans' Affairs


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Dear Verity,

 

Acknowledgement of FOI Internal Review Request – IR 24649

 

I refer to your request for internal review by our Department under the
Freedom of Information Act 1982 (FOI Act). The Department received your
request on 21 September 2018. In accordance with section 54C(3) of the FOI
Act, the Department has 30 days to process your request. As such, a
decision on your request is due by 21 September 2018, however given that
this is a Sunday, your decision is due 22 October 2018.

 

If you have any questions about your FOI matter, please contact us using
the following details:

 

 

Post: Legal Services & Assurance, Department of Veterans’ Affairs

GPO Box 9998, Canberra ACT 2601

Facsimile: (02) 6289 6337

Email: [1][email address]

 

In all communications please quote reference IR 24649.

 

Kind Regards,

 

Information Law Team

 

 

Information Law | Legal Services & Assurance Branch

Department of Veterans’ Affairs

GPO Box 9998 Canberra ACT 2601

E: [2][email address]

 

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Link to this

From: INFORMATION.LAW
Department of Veterans' Affairs


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15K Download


Good afternoon Verity,

 

Thank you for your email. To assist us in refining our search results,
could you please provide a copy of the document you refer to below?

 

“I am very interested in DVA’s claims that these financial transaction
documents do not exist, because the copy of the internal DVA document I
possess confirms that the external legal services provider work was indeed
commissioned by DVA and carried out by the external legal services
provider.”

 

Thank you

 

Information Law Team

 

Information Law | Legal Services & Assurance Branch

Department of Veterans’ Affairs

Gnabra House – 21 Genge Street Canberra City ACT 2601|GPO Box 9998
Canberra ACT 2601

E: [1][email address]

 

 

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

 

 

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Link to this

From: Verity Pane

Delivered

Dear Unnamed Officer,

Right to Know does not provide for the uploading of documents by applicants but in any case, given I received the document from a whistleblower within DVA, it would not be appropriate to provide direct copy anyway to you (that’s something I can tender at a later date, when protections on use of that document by your agency apply).

However, I am in possession of a copy of correspondence from your former Principal Legal Advisor, Carolyn Spiers, circa late 2011 - early 2012 (revealing the exact date at this stage may adversely effect the whistleblower), in which she states she commissioned and received from an external legal services provider (again, I won’t name them at this stage, as it’s not necessary to conduct a search and may reveal the whistleblower) legal advice on the Work, Health and Safety Act in that period, specifically into disclosures made by third parties about DVA.

As a DVA internal document, written by a DVA SES level officer (and notably at the time, the principal legal officer), it confirms you have intentionally lied about the existence of the documents sought (because external legal service providers don’t provide advice for free, and the commissioned work will have been invoiced, and you can’t hide that - hence these games you are playing, as you are going to great lengths to cover up this expenditure). Especially given this wasn’t a general administrative document lost in thousands of others of the same type, but a very specific and highly regulated documents required to be well archived by both your Legal Branch and your Finance branch in a very discrete and well recorded archive (and would have been easily identified, given reference to the time period and subject the external legal services advice was sought on, from the TRIM and Legal Branch G: drive archives), and involved SES level employees of DVA almost exclusively.

What I have noted from my research is that, contrary to the AG’s Legal Services Directive to agencies, DVA is an excessively litigious agency and resorts and excessively and regularly to commissioning external legal services work that is inappropriate to be referred to such high cost services, and that which should and could be carried out using internal resources at far less cost to the taxpayer (especially given the number of internal lawyers the Department has).

Questions are raised about the propriety of the relationships between certain members (past and present) of your SES level employees and the relationships they had with those they commissioned work for, which raises probity and ethics questions, especially given actions post DVA employment by those involved.

I’m not surprised you are going out of your way to cover up and delay and prevent access, but you can only delay the inevitable, given I have DVA’s own records confirming the existence of the records sought. I suspect the work commissioned was paid handsomely and then some, despite the inane nature of the work involved - a suspicion being bourne out by the fraud being perpetuated by DVA now, who know damn well they have what they have just denied existed.

Sorry guys, this won’t just disappear because of your usual tricks, you are already in the rat trap thanks to the whistleblower disclosure.

Yours sincerely,

Verity Pane

Link to this

From: Verity Pane

Delivered

Dear Unnamed Officer,

The following correspondence was provided to the OAIC about the IC Review this FOI is still subject to.

Yours sincerely,

Verity Pane

From: Verity Pane
Sent: Wednesday, September 26, 2018 12:32 pm
To: FOIDR
Subject: Re: IC Review MR18/00607 - DVA FOI 24050 - Cost of External Legal Services Expenditure on Work, Health and Safety Act 2012 implications

To the OAIC,

Unsurprisingly, after the OAIC breached it’s own Information Commissioner’s Directive as to certain procedures to be followed in IC reviews given under section 55(2)(e)(i) of the Freedom of Information Act 1982, the OAIC enabled DVA to engage in further abuses of the FOI Act.

After the OAIC failed to address the repeated delays and missed deadlines DVA knowingly caused, despite the requirements of the IC’s Directive, which sets out firm dates for when actions should take place, it should have been obvious that when this long overdue FOI did receive a response for DVA, it would have been an abuse of its FOI Act responsibilities.

When I did receive an FOI decision from DVA (late evening on Friday 21 September 2018), more than two months after my FOI request was made, it denied the documents sought existed.

As I understand it even the OAIC is aware the external legal services provider legal opinion was commissioned and sought by DVA back in FY2011/2012, as the OAIC has been involved with a privacy complaint that DVA cited the Work, Health and Safety Act legal opinion in, both before the Commissioner, then the Tribunal and lately the Federal Court (where the matter appears to have ended up), in each case the OAIC being a party.

Certainly, a whistleblower within DVA has provided me with direct internal DVA documents confirming that a Principal Legal Advisor (Ms Spiers) commissioned and did receive said legal advice from a specific external legal services provider.

Because it is a whistleblower document, and given the collusion between the OAIC and DVA that is evident (why otherwise would you be breaching your own IC Directive), I won’t be providing direct copy until I can be sure the use of that document can’t be used to witch-hunt the whistleblower (but at the AAT and the Federal Court, protections can be applied to prevent use for such a purpose), but suffice to say I have absolute proof the documents sought exist.

Even the most ineffective search would have uncovered them, given the documentation required to be raised on external legal service provider usage is both highly concentrated and highly regulated, such that the small number of records involved are kept in discrete areas with the Legal Branch and the Finance Branch, and the SES officers involved with it are still at DVA and would know exactly what was being referred to, especially since it is still connected to on ongoing legal matter.

DVA thus have denied the existence of documents they know to be in their possession, and if I have to go through the processes until I can get formalised discovery, I will.

So, to avoid all doubt, this IC Review remains open and is not withdrawn as a result of DVA’s decision of 21 September 2018. And while I have sought internal review from DVA, because it was from a deemed refusal decision, this does not stop the clock on the OAIC on this IC Review as per the rules relating to deemed refusal decisions.

Verity

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From: INFORMATION.LAW
Department of Veterans' Affairs

Good afternoon Verity Pane,

After a discussion with the Office of the Australian Information Commissioner it has been agreed that the Department is unable to proceed with an internal review of FOI 24050. This is because, although we issued you with a decision, it was issued after the decision became deemed. As such, the review will need to be undertaken by the Information Commissioner. For this reason, the Department will not be reviewing FOI 24050 through the internal review mechanism.

If you have any questions about this course of action please contact the Information Commissioner with your reference of MR18/00607. Our reference for this matter will remain the same (FOI 24649).

Kind Regards,
 
Information Law Team
Department of Veterans’ Affairs
E: [email address] | W: www.dva.gov.au

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From: Verity Pane

Delivered

Dear Corrupt DVA Information Law,

Has the OAIC now decided that DVA speaks for them?

I’ve certainly received no such communication from them.

There is no legal power for you to do as you claim, and you certainly don’t have that discretion.

It’s pretty obvious that your intent is to remove the statutory obligation on you to provide an internal review decision within 30 days (which cannot be extended), in order to allow delays extending years, which IC Reviews typically run up to now, thanks to OAIC indifference.

The IC Review concerned your deemed refusal, which was not functus officio as a result of the deemed decision.

Your long over due FOI decision effectively became a s 55G substitution of sorts of the deemed refusal.

The difficultly now is your decision claims the document does not exist, when it clearly does.

Under IC Review, the OAIC does not conduct searches of DVA records itself. That continues to remain the responsibility of DVA. Therefore, in respect to this particular Internal Review ground, which is the only ground an IC Review could consider, the OAIC cannot replace DVA.

To avoid all doubt, the deemed refusal IC review is withdrawn, given a access refusal decision has been substituted. I’ll refer your conduct under s 70 instead for your flagrant breaches of s 15(5)(a) and s 15(5)(b), and therefore the Internal Review deadline remains intact (especially since you are the only agency that can carry out further searches to confirm the document exists, which you and I both know does).

And only after the Internal Review is complete, a new IC Review can be lodged.

At least this way, external review can be undertaken much quicker (no waiting two years for the OAIC to do nothing).

Yours sincerely,

Verity Pane

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From: Verity Pane

Delivered

Dear Unnamed Officer,

You have been busy. This time you bothered to put your hand up your OAIC hand puppet.

And I’ll say the same thing I said to them - the Act does not give you or the OAIC the power to convert an Internal Review underway to something else, if a deemed refusal decision has had a Department decision issued after the deemed refusal (it’s correct that the matter is different if no such decision has been issued by most agencies still do Internal Reviews on a failure to reply regardless - but are not obligated by the Act to do - but once decision is issued by the agency Internal Review rights cannot be excluded).

Yours sincerely,

Verity Pane

From: Verity Pane
Sent: Friday, September 28, 2018 10:10 am
To: FOIDR
Subject: Re: IC Review MR18/00607 - DVA FOI 24050 - Cost of External Legal Services Expenditure on Work, Health and Safety Act 2012 implications [SEC=UNCLASSIFIED]

Carl,

What section of the Act says this “An actual decision made during the course of an IC review does not enliven the right to seek internal review under s 54” or indeed even suggests this. None.

Neither you not DVA have that discretion. Kindly stop making shit up.

I do not appreciate you trying to unlawfully exclude Internal Review rights, as well as to withdraw the the IC, so no review happens. However this type of corrupt unethical conduct is just how you behave, so I can’t say I’m surprised.

You can’t change the fact that a delegate of the Department (not the principal officer) issued an FOI decision, and therefore Internal Review rights remain intact.

Verity

From: FOIDR <[email address]>
Sent: Friday, September 28, 2018 9:37 am
To: Verity Pane
Subject: RE: IC Review MR18/00607 - DVA FOI 24050 - Cost of External Legal Services Expenditure on Work, Health and Safety Act 2012 implications [SEC=UNCLASSIFIED]

Dear Ms Pane

Thank you for your email. I write to you to clarify this matter.

Because the Department was deemed to have refused your request, the FOI Act does not permit the an internal review to be conducted.

This is because s 15AC of the FOI provides that where a decision is not made by the agency within the statutory timeframe, the principal officer of the agency is deemed to have refused the request. Section 54 provides that an applicant can seek internal review of an agency’s FOI decision, other than a decision made by the principal officer of the agency. An actual decision made during the course of an IC review does not enliven the right to seek internal review under s 54.

However, the Information Commissioner can still review the actual decision made by the Department in this matter. I note you have advised that you wish to withdraw your application for IC review. However in light of the above advice, can you confirm if you still wish to:
· Withdraw your IC review application, or
· Proceed with an IC review and provide submission on the grounds on which you wish to proceed

I would appreciate a response by 5 October 2018. If I do no hear from you by this date, I will accept the withdrawal of your application in your email below.

Kind regards

Carl English | Assistant Review Officer
Freedom of Information Dispute Resolution
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | oaic.gov.au
+61 2 9284 9745 | +61 412 345 678 | [email address]

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From: Verity Pane

Delivered

Attn DVA,

Timeline:
18 July 2018 - FOI made
1 August 2018 - s 15(5)(a) acknowledgment deadline expired with DVA in breach
17 August 2018 - s 15(5)(b) decision notice deadline expired with DVA in breach - deemed refusal
29 August 2018 - first acknowledgement by DVA
21 September 2018 - DVA substitutes deemed refusal with decision notice refusing access (decision notice is *not* made by principal officer of DVA)
21 September 2018 - Internal Review applied for on DVA FOI decision notice of 21 September 2018
24 September 2018 - DVA acknowledges internal review, confirms response date of 22 October 2018
22 October 2018 - s 54(3) internal review deadline expires with DVA in breach. s 54D deemed affirmation of original decision applies.

Yet again the corrupt, unethical bad faith conduct, systemic to DVA (and most visible in the high handed and arrogant corruption of the DVA Information Law officers) raises its ugly festering head again.

You should learn from the case of John Lloyd, who similarly thought he could do whatever he wanted and his position and hierarchy would protect him, until he was forced to resign. I’ve already heard that there is a cleaning of house going on, you may find yourself on the very wrong side of it.

Three months of intentional bad faith from DVA on this FOI - absolutely shameful - and it certainly won’t hold up in Court.

Ms Pane

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Things to do with this request

Anyone:
Department of Veterans' Affairs only: