Council to locate and identify documents they have access to.

Waiting for an internal review by Bayside City Council (Victoria) of their handling of this request.

Scott, of the family Chapman

Dear Bayside City Council (Victoria),

I would like the relevant Council departments to identify documents they have access to with respect to Council 'Planning approval' and 'Buildings approval' that was granted for 4 specific parts of the building envelope located on the site 150 Esplanade, Brighton, Victoria.

The 4 specific elements are described as,

i) The Basement structural height that projects from the boundary Nature Ground Level above the 1200mm restriction building height, on the Victoria Street frontage.

ii) The upper roof extension comprising of the new split level upper parapet roof works projecting above regulation building height limits from Nature Ground Level as viewed from the Victoria Street building frontage.

iii) The building structural alterations undertaken above the second storey in contravention to building height controls and the approved 2 storey permit for development of the land.

iv) The ground floor extension built on the Esplanade building frontage that appears to have been deliberately built in contravention of planning controls.

I do not require any disclosure of personal privacy (such as names, addresses, telephone numbers etc). I do not require any plans (building, planning), drawings, photographs etc. If Council believes that any document violates section 33, section 34(1) or section 23(3)(c), then Council must redact that information as in accordance with Sect 22 prior to presenting the required material.

Kind regards,
Scott, of the family Chapman [without title of 'Mr']
All unalienable rights reserved and non waived

Enquiries, Bayside City Council (Victoria)

 

Thank you for your enquiry.

 Your email has been received and will be forwarded to the appropriate
officer/department for a response.

 If your email is in relation to an existing enquiry, this has been
referred to the officer that has been allocated your original request.

 If you require urgent assistance or after hours support please contact us
via telephone on 03 9599 4444.

[1]www.bayside.vic.gov.au

References

Visible links
1. http://www.bayside.vic.gov.au/

Scott, of the family Chapman left an annotation ()

Please note the words, "Nature Ground Level" should be "Natural" Ground Level

Karen Brown, Bayside City Council (Victoria)

Hi Scott,

Your request for documents has been passed to me as I look after Freedom of Information Requests (FOI).

The usual process to apply for documents is to complete the application form on our website (https://www.bayside.vic.gov.au/make-free...). This form allows you to pay the application fee of $29.60 at the end via card. This just makes it easier to pay for those who want to use a card of some sort.

As you have provided me with an idea of what you are looking for below, you don't need to complete the form, however payment will still need to be made before I can consider the request to be valid. You can still pay by card, you just need to complete the form and write 'already received' where you would normally write the details, and then continue down to the card payment fields. If it is easier for you I can request an invoice and then email it to you. This provides a selection of payment options.

There are three elements required to form a valid request:

1. Request is written down
2. Application Fee is paid
3. Request is clear and does not contain any ambiguity.

At the moment only element 1 has been ticked off. However, before we go any further, I'd like to confirm that you want to go ahead with a FOI request and if yes, how you would like to pay for it. Once that has been determined we can discuss the detail of your request.

I look forward to hearing from you.

Kind regards,
Karen.

Karen Brown 
Governance Coordinator | Governance

Bayside City Council
76 Royal Avenue Sandringham VIC 3191
Tel 03 9599 4636  
[email address]
bayside.vic.gov.au

show quoted sections

Scott, of the family Chapman

Dear Karen,

Thank you for the ‘acknowledgment of receipt’ for the lodgement of my request to the Bayside City Council.

I would like the Council to apply a waiver to their payment request of $29.60 at this time, as this is an initial request for information that will aid additional follow up requests to be made for retrieval of the specific document(s) i.e. this request is for Council to 'identify the documents', they have access to. I will need to know what specific documents to request, before I would be able to make a more targeted information request. I’m sorry if this was not clear in my written request.

Further valid reasoning for the fee and charges to be waived, is that all building modifications must seek Council approvals prior to commencement of specified works. Therefore it would not be unreasonable to assume that there is a compelling public interest in this matter. Have the building additions been approved by the regulating body Planning department and separately verified/approved by the Municipal Buildings department?

Please also consider that reviewing the Council held Register of building permits carries no cost, refer to,
BUILDING ACT 1993 - SECT 31, Register of building permits. (2) A council must make the register available for inspection by any person during normal office hours.
However, since the introduction of COVID-19, I do not believe an office inspection/visit would be feasible. Therefore an information request would appear to be the best and only way to acquire the regulatory required material detail requested.

Yours sincerely,

Scott, of the family Chapman

Karen Brown, Bayside City Council (Victoria)

Hi Scott,

Thanks for getting back to me.

I understand that you would like to identify the documents before any further action is taken. Are you happy to leave this with me to try and discover which documents contain the information that you require?

I would base my enquiries around your request as shown below:

"I would like the relevant Council departments to identify documents they have access to with respect to Council 'Planning approval' and 'Buildings approval' that was granted for 4 specific parts of the building envelope located on the site 150 Esplanade, Brighton, Victoria.

The 4 specific elements are described as,

i) The Basement structural height that projects from the boundary Nature Ground Level above the 1200mm restriction building height, on the Victoria Street frontage.

ii) The upper roof extension comprising of the new split level upper parapet roof works projecting above regulation building height limits from Nature Ground Level as viewed from the Victoria Street building frontage.

iii) The building structural alterations undertaken above the second storey in contravention to building height controls and the approved 2 storey permit for development of the land.

iv) The ground floor extension built on the Esplanade building frontage that appears to have been deliberately built in contravention of planning controls."

Once the documents are discovered, we can discuss the best way to try and have the documents released.

Please let me know if you are happy for this to occur.

Kind regards,
Karen.

Karen Brown 
Governance Coordinator | Governance

Bayside City Council
76 Royal Avenue Sandringham VIC 3191
Tel 03 9599 4636  
[email address]
bayside.vic.gov.au

show quoted sections

Scott, of the family Chapman

Dear Karen,

Thank you again for your swift response.

Yes indeed, this Freedom of Information Request is for information that Bayside City Council has access to that specifically 'identifies the documents'. These being the four elements of the building additions at the subject site, as recorded in point i), ii), iii) & iv) of the request.

Yes you are correct, once Council has provided access to that documented information, then additional freedom of information requests may be required for the verified permits nominated during the processing of this information request.

It is assumed that Council fully agrees that it is a matter of public interest and has waived all/any associated FOI fees and charges at this current time.
Also, in an attempt to remove any potential ambiguity in the request issued, the words "Nature Ground Level" should be changed to "Natural Ground Level". A minor typo in point i) & ii) of the request which was covered and amended in my follow up annotation.

I look forward to receiving the information. If anything is unclear please request what needs clarifying prior to releasing the information and I will endeavor to provide additional clarity to you.

Kind Regards
Scott, of the family Chapman

Karen Brown, Bayside City Council (Victoria)

Hi Scott,

I have sent off a request to officers to help identify the documents that you are looking for. I have asked for a response by the end of the week. It may be the case that some documents can be released outside of FOI, however usually building and planning documents need to follow the FOI process.

With regards to the FOI Application fee and Access charges, the legislation allows me to waive them if applicants are a) on financial pensions (e.g. disability, aged, etc) or b) if they are impecunious. It is true that some fees and charges may be waived if c) the applicants use of the documents is of interest or benefit to the general public. However, until I see the documents that are involved I won't be able to confirm this.

Simply, the Application fee may be waived for any of the three reasons stated above, with accompanying proof (e.g. a copy of the back an front of a pension card). However the reasonable costs to copy the documents may still be charged if you wanted a hard copy. Sending copies electronically doesn't include a copy fee, only the cost to prepare the documents for electronic delivery (i.e. email) and the drafting of the decision letter. Again, this could be waived if you meet the criteria for a) or b) or if you don't require hard copies for c).

I hope that all makes sense!

I note that you asked for a change in your requirements to read 'Natural Ground Level' rather than 'Nature Ground Level'. I can confirm I have made this change for you.

I will get back to you once I have access to the documents, and have reviewed them for their eligibility to be provided outside or within the FOI process. Feel free to poke me in the meantime if you want an update.

Kind regards,
Karen.

Karen Brown 
Governance Coordinator | Governance

Bayside City Council
76 Royal Avenue Sandringham VIC 3191
Tel 03 9599 4636  
[email address]
bayside.vic.gov.au

show quoted sections

Scott, of the family Chapman

Dear Karen

Thank you for your follow up commentary 7 Sept 2020.

With respect, I would prefer to keep the request requirement simple and unchanged at this time i.e as per the original material requested. That being the appropriate Council departments to identify/verify documents they have access to, with regard to the four nominated built building elements. I don't feel it is necessary to over-complicate matters at this point, lets see what material/information exists first before potentially requesting any copies or electronic copies of the Permit(s) in further FOI requests. Thanks for the confirmation that information documentation regarded as a 'Public Interest' matter will not carry any fees or charges.
It is viewed and I'm sure you would agree, that the word "Natural" or "Nature" does not change the material content requested as it would provide the same resulting requested information.

I will look forward to receiving the information, and again, if anything is unclear please request clarification prior to release and I will attempt to provide additional clarity for you.

Kind Regards
Scott, of the family Chapman

Karen Brown, Bayside City Council (Victoria)

Hi Scott,

I just wanted to give you an update on the documents that you are looking for.

I currently have the planning team looking at this for me, but they will require a couple of extra days. I am now hoping to have something to you by Wednesday (16/09/2020), although I'll be encouraging the process to be a little faster than that.

My apologies for the delay.

I hope you have a lovely weekend and I'll be in touch next week.

Kind regards,
Karen.

Karen Brown 
Governance Coordinator | Governance

Bayside City Council
76 Royal Avenue Sandringham VIC 3191
Tel 03 9599 4636  
[email address]
bayside.vic.gov.au

show quoted sections

Scott, of the family Chapman

Dear Karen,

Thank you for the update 11 Sept 2020.

My understanding is that the Buildings Department has issued and verified the Building Permit(s) information to you and now we wait for the Planning Department to do the same for the Planning Permit(s).

Many thanks, have a great weekend too.
Kind Regards,

Scott, of the family Chapman

Karen Brown, Bayside City Council (Victoria)

Hi Scott,

The search continues. I hope to have an email to you Mon/Tue next week with the documents that I have found.

I will not be in the office tomorrow, but will be back Monday if you have an questions.

Kind regards,
Karen.

Karen Brown 
Governance Coordinator | Governance

Bayside City Council
76 Royal Avenue Sandringham VIC 3191
Tel 03 9599 4636  
[email address]
bayside.vic.gov.au

show quoted sections

Scott, of the family Chapman

Dear Karen

Your update September 17, 2020, states that the Council will now need until 22 September 2020 to complete this freedom of information request. I note that the processing 30-day allowance expired on Tuesday, 15 September 2020. Therefore, I must insist that you please ensure that the Council Municipal Buildings department and Planning Department representatives have provided all the verified/endorsed relevant information by the new date that you propose.

Thank you again for your diligent work thus far. Can you please make sure that the Council documented request-response, is clear and does not contain any ambiguity, with respect to each Permit identified and the established relationship to each of the four specific built elements highlighted in my information request.

I look forward to receiving the information from you.
Kind Regards,
Scott

Karen Brown, Bayside City Council (Victoria)

I am currently out of the office and will be returning on Monday, 21
September 2020.

 

Please contact Terry Callant on 9599 4444 / [email address] if
you have an enquiry regarding Governance matters.

 

Kind Regards,

Karen.

 

Karen Brown, Bayside City Council (Victoria)

Dear Scott,

I hope you had a lovely weekend.

I am concerned that you are referring to your request for information as a 'Freedom of Information' request. We had established in earlier emails that you were looking to see if there were any documents that contained the information that you required. If documents were identified then you would consider if you wanted to pursue a formal 'Freedom of Information' application. At this point I have just been looking to see if there were any documents that fit your requirements, so therefore there is no legislated timeframe in which to do this. The timeframe you mention is pertaining to the formal Freedom of Information process.

I have been informed by the Building and Planning Departments that they have both separately been in contact with you and have supplied copies of all plans and documents that can be released outside of a formal request for Building or Planning Permit documents.

If you are wanting documents that form part of the Permit process you will need to apply for these through the proper channels.

For Building Permit plans and documents the application to request documents can be found at: https://www.bayside.vic.gov.au/request-b...

For Planning Permit plans and documents the application to request documents can be found at: https://www.bayside.vic.gov.au/request-p...

Please note that there are fees to be paid for each application, and for Building Permit information you will require a Letter of Authorisation from the property owner (unless of course you are the owner of the property).

Under Section 14 of the 'Freedom of Information Act 1982' documents that are available for purchase/are subject to a fee, cannot be obtained through the Freedom of Information process (see below). Therefore I am unable to help you with access to these documents through FOI. You are, of course, welcome to go through the application processes outlined above.

"14 Part not to apply to certain documents
(1) A person is not entitled to obtain access under this Part to—
(a) a document which contains information that is open to public access, as part of a public register or otherwise, in accordance with another enactment, where that access is subject to a fee or other charge;
(b) a document which contains information that is available for purchase by the public in accordance with arrangements made by an agency; or..."

Let me know if you have misplaced the documents that were sent to you from the Planning and Building departments, as I can arrange for another set to be sent to you.

Kind regards,
Karen.

Karen Brown 
Governance Coordinator | Governance

Bayside City Council
76 Royal Avenue Sandringham VIC 3191
Tel 03 9599 4636  
[email address]
bayside.vic.gov.au

show quoted sections

Scott, of the family Chapman

Dear Karen
Yes, I had a great weekend, thanks for asking.

I write to you further, with regard to my written information request that was made to the agency the Bayside City Council. To be clear, this freedom of information request has not been withdrawn and access to the information has not been provided by the agency. I confirm that the information sought remains unchanged since issued to the agency 15 August 2020.

Your response to the request dated 21 Sept 2020, indicates that you have located and identified the specific information I requested. However you did not provide that information for explanations that remain unknown. I understand that we have already established that the requested information I seek does not carry any fees or charges, nevertheless, I believe that discussion may be irrelevant once the time limit ran out.

I look forward to receiving the specific requested information from you as per your proposed date, 22 Sept 2020. And again, if anything is unclear in this information request, please request clarification, but since you have the information I do not believe you would require any further input.

Have a great day,
Kind Regards,
Scott, of the family Chapman

Scott, of the family Chapman left an annotation ()

I note that your quoted policy Section 14 of the Freedom of Information Act 1982 does not have any effect in this case, since we have already established (inside the freedom of information request time limit) that the requested information I seek does not carry any fee’s or charges.

Karen Brown, Bayside City Council (Victoria)

Dear Mr Chapman,

Thank you for your response.

Before responding to your last email, I would like to advise you of my disappointment that you have chosen to ‘publish’ my correspondence to you in full on the www.righttoknow.org.au website, complete with my name and contact details. Whilst I have no issue with any of my correspondence to you being published, I feel that you have manipulated me in order to make a point. It would have been preferable for you to have advised me of your intent up front.

Now, with relation to your most recent email, I must again state that at the moment you have not submitted a formal Freedom of Information (FOI) request. The purpose of the current activity was to ‘identify’ documents that you may wish to request through the FOI process at a later stage.
This was confirmed with you in our initial correspondence on the 01/09/2020:

My email to you:

“As you have provided me with an idea of what you are looking for below, you don't need to complete the form, however payment will still need to be made before I can consider the request to be valid. You can still pay by card, you just need to complete the form and write 'already received' where you would normally write the details, and then continue down to the card payment fields. If it is easier for you, I can request an invoice and then email it to you. This provides a selection of payment options.

There are three elements required to form a valid request:

1. Request is written down
2. Application Fee is paid
3. Request is clear and does not contain any ambiguity.

At the moment only element 1 has been ticked off. However, before we go any further, I'd like to confirm that you want to go ahead with a FOI request and if yes, how you would like to pay for it. Once that has been determined we can discuss the detail of your request.”

Your response to my email on the 01/09/2020 was:

“…this is an initial request for information that will aid additional follow up requests to be made for retrieval of the specific document(s) i.e. this request is for Council to 'identify the documents', they have access to. I will need to know what specific documents to request, before I would be able to make a more targeted information request. I’m sorry if this was not clear in my written request.”

And again, on the 07/09/2020:

“With respect, I would prefer to keep the request requirement simple and unchanged at this time i.e as per the original material requested. That being the appropriate Council departments to identify/verify documents they have access to, with regard to the four nominated built building elements. I don't feel it is necessary to over-complicate matters at this point, lets see what material/information exists first before potentially requesting any copies or electronic copies of the Permit(s) in further FOI requests.”

Further to this, you had also requested that the FOI fees were to be waived as you felt the documents you were searching for would be in the public interest to be released. To clarify, as the request is not yet formal, I have not confirmed the waiving of any fees. I did, however, advise you on the 07/09/2020 that fees can be waived in three circumstances:

“With regards to the FOI Application fee and Access charges, the legislation allows me to waive them if applicants are a) on financial pensions (e.g. disability, aged, etc) or b) if they are impecunious. It is true that some fees and charges may be waived if c) the applicants use of the documents is of interest or benefit to the general public. However, until I see the documents that are involved, I won't be able to confirm this.

Simply, the Application fee may be waived for any of the three reasons stated above, with accompanying proof (e.g. a copy of the back and front of a pension card). However, the reasonable costs to copy the documents may still be charged if you wanted a hard copy. Sending copies electronically doesn't include a copy fee, only the cost to prepare the documents for electronic delivery (i.e. email) and the drafting of the decision letter. Again, this could be waived if you meet the criteria for a) or b) or if you don't require hard copies for c)."

Until I receive a formal FOI request from you, I am not is a position to confirm the waiving of any fees, nor are there any legislated timeframes within which I am to work.

My last email to you (21/09/2020) provided you with the specific ways in which to obtain both Building and Planning permit information. If you have any questions on the fees that are charged for these documents this needs to be taken up with the respective departments as it is outside the scope of Freedom of Information.

Again, I advise that both the Planning and Building departments have advised that they have supplied copies of all plans and documents, where they exist, that can be released outside of a formal request for Building or Planning Permit documents. A copy of these documents can be provided, if you have misplaced the original documents. Apart form this, I don't think I can help you any further until a formal FOI request is received.

If you have any concerns with the way in which I have conducted this enquiry for information, you are able to make a complaint to the Office of the Victorian Information Commissioner (OVIC). OVIC can be contacted via phone on 1300006842, email [email address] or via their website www.ovic.vic.gov.au .

Kind regards,
Karen

Karen Brown 
Governance Coordinator | Governance

Bayside City Council
76 Royal Avenue Sandringham VIC 3191
Tel 03 9599 4636  
[email address]
bayside.vic.gov.au

show quoted sections

Scott, of the family Chapman

NOTICE OF DEFAULT AND OPPORTUNITY TO CURE

Date: 23/09/20

Dear Karen

RE, No response to the freedom of information request and, No evidence of regulation required permits for the additional built works at 150 Esplanade, Brighton, Victoria.

In simple terms, I am not aware of the existence of the Permit information that you found that specifically endorsed each element of these works, and I am not aware that council has provided this regulatory required information that was requested from you in this freedom of information request. Council has not provided access to any relevant associated endorsed/verified information relevant to public policy, either past or present.

I appreciate this may be frustrating for you so I will endeavour to address your concerns, as you have the responsibility as the qualified public information officer to process this request, and further to that, you have also been made aware of the public regulatory obligation matter that council must satisfy, as it is not considered unreasonable to ask the council to do so. The public regulatory obligation is within the Bayside City Councils remit, of which they have been given delegated authority for such matters. I note that your proposed date 22 Sept 2020 to provide the information you advised you found has now pasted, yet you elected not to provide that information despite your offer to provide that information, and that offer was accepted by me on 21 Sept 2020. Notably your response 22 Sept appears to refer to matters not related to this freedom of information request.

The processing requirements of this valid request:-

1. I assure you that my intent is clear, I require that council provide access to the requested documented information, as per my written freedom of information request records. That is, to specifically provide the document(s) that identifies the information that council holds or has access to, that records the relevant Permit numbers/mark with respect to, regulatory required endorsement/approval of each of the identified elements of the built structure at the subject site. The elements are listed as points 1 to 4 in the request for information. The information sought remained unchanged throughout the process. You still have an opportunity to cure, by providing that documented information specifically relevant to this FOI request. I acknowledge that providing this information may informally resolve all matters and concerns raised with you, pursuant to this valid request.

2. You affirmed that a fee waiver applies to all public interest matters. It was established with you that the waiver was applied unless you are suggesting that building modifications, built without a permit, or failed to request the required permissions, are not a public matter for council? or are you suggesting that the public matter is not within the responsible authorities remit?

3. In the early stages of this process it was agreed with you what specific documented information was being requested. I note that you later advised that the information I sought had been located by you, and that information was available specifically from the Buildings department and separately from the Planning department. However, I note that you continue to choose to withhold that freely obtainable information from this freedom of information request for reasons that still remain unexplained.

4. The time limit expired 15 Sept 2020. This freedom of information request was not withdrawn and therefore the time limit for such activities expired 8 days ago, and with that, I comprehend any such associated claims for charges to access of information were discharged beyond that expiry date.

Possible council mistake and the opportunity to cure –
I understand that your current non-response is deemed as a refusal to provide the information you acknowledge you found pertaining to the specifics of this request. I consider myself to be a reasonable man and will therefore offer you an ‘opportunity to cure’, by providing me with the council information within the next 10 days i.e. the information that documents the specific endorsed/verified Permits relative to the four elements of the built structure at the subject site, as per the FOI request. I acknowledge that this may informally resolve all unaddressed matters.

Failure to provide the requested information within the next 10 days will be deemed as your acceptance of all information contained within this notice, and your systematic refusal to provide the information that you found that may satisfy the request, and your demonstrated unwillingness to consider this practical outcome that can be achieved by your actions. Therefore you will leave me no option other than to request an internal review. I appreciate you will be disappointed with this decision, but your performance thus far has not helped to gain access to the building compliance information you claim council holds. This raises further issues and alarming concerns about how the Bayside City Council work culture deals with public transparency and governance matters.

Your personal expressed views/opinions –
This FOI request was made in writing to the appropriate agency that is responsible for such public regulatory Buildings and Planning matters. The public website, appropriately named "right to know" was utilized to facilitate the Freedom of Information (FOI) request process, as it is dedicated to do so. I'm sorry that you feel your responses to a FOI request may not (in your opinion) be viewed as a matter for public consumption. However, this website has a FOI officer questions and help page that you may find useful, to aid/address any of your personal concerns/views. Here is the link for your benefit https://www.righttoknow.org.au/help/offi....

No ill-will or vexation intended. Many thanks for your continued consideration

Kind Regards,
Scott, of the family Chapman.
All rights reserved, none waivered

Scott, of the family Chapman left an annotation ()

Note to council officer,
Please note the typo 'pasted' in the second paragraph,
should be 'past'.

Karen Brown, Bayside City Council (Victoria)

Dear Mr Chapman,

If you have any concerns with the way in which I have conducted this enquiry for information, you are able to make a complaint to the Office of the Victorian Information Commissioner (OVIC). OVIC can be contacted via phone on 1300006842, email [email address] or via their website www.ovic.vic.gov.au .

Kind regards,
Karen

Karen Brown 
Governance Coordinator | Governance

Bayside City Council
76 Royal Avenue Sandringham VIC 3191
Tel 03 9599 4636  
[email address]
bayside.vic.gov.au

show quoted sections

Scott, of the family Chapman

Dear Bayside City Council (Victoria), 

Please pass this on to the person who conducts the freedom of information (FOI) internal reviews. 

The Bayside City council freedom of information proposed date 22 Sept 2020, as offered by the FOI officer, has elapsed. The additional ten-day allowance afforded to the officer, with an opportunity to cure any potential mistakes has also expired. As appropriate, I am writing to request an internal review of the agency (Bayside City Council, Victoria) handling of my FOI request, with regard to the written FOI notice issued to the agency 15 Aug2020. Relevantly, the Bayside City council freedom of information officer failed to disclose the relevant information during the processing of the 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,
Scott, of the family Chapman

Enquiries, Bayside City Council (Victoria)

 

Thank you for your enquiry.

 Your email has been received and will be forwarded to the appropriate
officer/department for a response.

 If your email is in relation to an existing enquiry, this has been
referred to the officer that has been allocated your original request.

 If you require urgent assistance or after hours support please contact us
via telephone on 03 9599 4444.

[1]www.bayside.vic.gov.au

References

Visible links
1. http://www.bayside.vic.gov.au/

Karen Brown, Bayside City Council (Victoria)

1 Attachment

Dear Mr Chapman,

Please find attached the response to your email from our Chief Executive Officer, Mr Mick Cummins.

Kind regards,
Karen.

Karen Brown 
Governance Coordinator | Governance

Bayside City Council
76 Royal Avenue Sandringham VIC 3191
Tel 03 9599 4636  
[email address]
bayside.vic.gov.au

show quoted sections

Scott, of the family Chapman

Dear Mr Cummins, Freedom of Information (FOI) internal review officer and Chief Executive Officer for the Bayside City council.

Thank you for the response to my request for an internal review of the original FOI request that was sent to an agency known as the Bayside City council on 15 Aug 2020.

I acknowledge that you have fully reviewed all the freedom of information request correspondence and accept all the material available to you. However, from the information you have provided, I must inform you that I am not aware of the recorded information that would suggest the agency officer advises that my FOI request "is not a valid request", as you stated. Of note, the FOI officer initiated the discussion to discuss the detail of my request after the waiver was applied. The officer clarified the information requested and proceeded to process the request with the internal departments. The officer informed me that they located the requested information within the agency departments separately. The officer offered to provide access to the specific information pertaining to the freedom of information request. The statutory time-limit ran out and the agency officer did not dispute the agreed waiver. However, any potential disagreement raised by the agency after the fact is deemed irrelevant matter once the time limit ran out.

The FOI officer was afforded additional time with an ‘opportunity to cure’. I comprehend the officer willingly and knowingly declined that offer. The officer did not claim that the waiver applied did not take effect or was invalid to the application. The officer made no further requests for a processing payment after the waiver was applied. The officer did not clearly state that the written request issued was not valid. The officer continues to withhold the requested Freedom of Information material for reasons that remain unknown.

In your capacity as FOI internal review officer and CEO of the local authority, I request that you clearly explain why the agency believes Planning/building regulation/endorsement matters are not a function of government, in which the agency is tasked to perform i.e. a public interest matter.

A failure to provide a reasonable response to the above will be regarded as an agency agreement, that,
a) the FOI officer did not advise, either expressed or implied or otherwise, that the waiver did not apply and,
b) did not clearly state the request was not a "valid request".

Furthermore, can you please identify what section of the FOI policy would allow the agency officer to dismiss/withdraw (without consent) a written Freedom of Information request issued to them? Notably, the words "formal" and "valid" are not interchangeable as they are not synonyms of each other and have different meanings in standard English terms. I only understand standard English and if the agency corresponds in anything other than standard English, then the agency must provide a reference glossary to the foreign language used.

Please make it known if you or any agency representatives do not agree with any information contained within this notice. A none response is deemed as your full unconditional agreement. You have ten days to provide a written response.

Kind Regards
Scott (without the Mr) Chapman
All rights reserved, none waived

Scott, of the family Chapman

NOTICE OF NONE RESPONSE
Date: 31/10/20

RE, Freedom of information (FOI) request, relevant to no evidence of regulation required material for the additional built works identified at 150 Esplanade, Brighton, Victoria (the FOI request).

Dear MickCummins, Freedom of Information (FOI) internal review officer and ChiefExecutive Officer for the Bayside City council. 

I issue the agency with this 'NOTICE OF NONE RESPONSE', pertaining to the agency failure to provide/articulate if they disagree with any of my assertions and failing to provide the required substance for any agency views expressed. 

You understand that the agency (council) has been afforded ample opportunity to provide the appropriate reasoning for the continued withholding of the ‘specific information’ requested. I record the agency none response to questions of clarity posed to them. As such it is deemed you fully understand that your inaction/silence is assumed as your tacit consent of full unconditional agreement with my statements issued to you in previous correspondence. Given there is no evidence of controversy or disagreement, the only reasonable course of action would be for the agency to provide access to the specific information requested. Information which the agency officer clearly stated they had located within the separate agency departments, under the processing of this freedom of information request. Therefore, I must compel the agency to complete the processing requirements of the original FOI request process as per your FOI policy dictates. To be clear, I am not aware that the FOI agency officer stated that the fee/charge waiver requested 1 Sept 2020, did not apply to the information request that is associated with regulatory buildings and Planning matters. 

It is also important to note that you, Mr. Mick Cummins CEO of Bayside City Council, are the same person in which an ‘informal’ request was made, for the same ‘specific planning and Buildings information’. And as such you are well aware that it is viewed that the council failed to provide that same ‘specific information which lead to that request being escalated into a complaint matter to you (as council CEO). Again, it is known to you that this complaint matter was referred to and dealt with by the Victorian Ombudsman and then later the Victorian Inspectorate. It was concluded by the VO and VI August 2020 (due to the view of a failure to provide the specific information), that a freedom of information request would be the appropriate avenue to gain access to the ‘specific’ Buildings and planning regulatory material.  

If you or the FOI officer who provided the FOI responses are not trained/qualified to deal with freedom of information-related matters, please make it known. If this is the case, may I suggest that you direct these issues to a more appropriately qualified agency officer. 

Many thanks for your continued professional consideration. No ill-will or vexation intended.

Kind Regards,
Scott(without Mr), of the family Chapman.
C/O Scott Chapman, Righttoknow.org
All rights reserved, non-waived

Karen Brown, Bayside City Council (Victoria)

Dear Mr Chapman,

Thank you for sharing your thoughts with me.

I understand that the Bayside City Council CEO, Mr Mick Cummins, recently responded to you by letter about this matter.

If you are still of the view that your request has not been handled appropriately, I can only echo his thoughts by suggesting you may wish to lodge a complaint with the Office of the Victorian Information Commissioner (OVIC). OVIC is the independent regulator with oversight of information access and information privacy and can be contacted as shown below:

Address: PO Box 24274, Melbourne, Victoria, 3001
Phone Number: 1300 006 842 (1300 00 OVIC)
Email: [email address]
Website: https://ovic.vic.gov.au/

Kind regards,
Karen.

Karen Brown 
Governance Coordinator | Governance

Bayside City Council
76 Royal Avenue Sandringham VIC 3191
Tel 03 9599 4636  
[email address]
bayside.vic.gov.au

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Scott, of the family Chapman

Hi Karen,

Thank you for your continuance to facilitate this FOI internal review process, although I was under the impression that internal reviews are supposed to be performed independently? Nevertheless, I note the agency's acknowledgment of all matters brought to its attention to date, and relevantly the agency does not contest any of those matters. As such, I thank you for the agency's full unconditional acceptance, which would establish that no associated controversy exists.

If anything is unclear or the agency does not agree, please make it known and I will endeavor to provide you with that clarification for your benefit.

Kind Regards,
Scott(without Mr), of the family Chapman.
c/o Scott Chapman, Righttoknow.org
All rights reserved, non-waived