Current contracts with confidentiality clauses

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,

Under FOI, I seek copy of the the first page only (cover page is fine), of all current, contracts DVA has, that contain a confidentiality clause within them.

I note that the first page of a contract, which is generally a cover page, would reveal the names of the parties to the contract and possibly the date the contract was signed or come into existence, but generally nothing else.

Notably, such information of this type of information in such a cover page would typically be required to be disclosed as part of mandatory Commonwealth procurement disclosures, and thus would have no confidentiality obligations that could apply to it (and given prior public disclosure, no reasonable grounds to engage in third party consultation over).

If the first page contains additional information beyond this, it may be redacted with consent under s 22(2).

Yours faithfully,

Verity Pane

Link to this

From: INFORMATION.LAW
Department of Veterans' Affairs

Good afternoon Verity Pane,

FOI 24588 - Acknowledgement of FOI request

We acknowledge receipt of your FOI request received by the Department on 18 September 2018. A decision on your request will be due by 18 October 2018.

Kind Regards,

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

show quoted sections

Link to this

From: INFORMATION.LAW
Department of Veterans' Affairs

Good afternoon Verity Pane,

FOI 24588 - Request to revise scope of your request

Further to your request below, we have received advice from the relevant business area that there are in excess of 900 documents that may fall within the scope of your request. They have advised that a spreadsheet can be provided to you, which will contain the information you seek (which would also be available on the first page of each contract). Furthermore, the spreadsheet is likely to provide further details than what would be available on the first page. As such, would you be willing to revise your request to be for the high level spreadsheet?

If we are required to retrieve and identify each page in accordance with the scope as currently defined, it will take in excess of 30 hours. As such, a charges notice will likely apply particularly given that the information is already available in a different format than you have requested. If you agree to revise the scope to the high level document, we can issue the decision to you this week and no charges will apply.

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

show quoted sections

Link to this

From: Verity Pane

Delivered

Dear Unnamed Officer,

If the Department would prefer to utilise s 17 of the Act, and compile one document (spreadsheet) in lieu, I am happy to consent to that.

Yours sincerely,

Verity Pane

Link to this

From: INFORMATION.LAW
Department of Veterans' Affairs

Good afternoon Verity Pane,

Thank you for the below and agreeing to the revision in scope. We will utilise section 17 of the FOI Act and use the available spreadsheet to provide the information you seek. A decision will be issued to you this week.

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

show quoted sections

Link to this

From: INFORMATION.LAW
Department of Veterans' Affairs


Attachment image001.png
15K Download

Attachment FOI 24588 Statement of Reasons.pdf
168K Download View as HTML

Attachment FOI 24588 Document for release.pdf
1.9M Download View as HTML


Dear Verity Pane

 

FOI 24588 Decision and Statement of Reasons

 

Please find attached the decision in relation to your freedom of
information request received by the Department of Veterans’ Affairs on 19
September 2018.

 

Kind regards

 

Information Law | Legal Services & General Counsel Branch

Department of Veterans’ Affairs

E: [1][email address]

 

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

 

show quoted sections

Link to this

From: Verity Pane

Delivered

Attn Position Number 62212962,

I have received your decision notice and released document, but before doing anything further, just need to confirm that, of the one thousand plus contracts listed (of which only 11 have a confidentiality flag on AusTender), all - repeat all - have confidentiality clauses preventing the release of any page of the contract (whether in part or in full)?

I just need to confirm you haven’t included contracts that don’t have confidentiality clauses, as they were explicitly excluded from the FOI scope.

Having checked the required disclosure logs for contracts with confidentiality provisions, there certainly isn’t a 1,000+ contracts listed there. Does this mean DVA has been breaching the the Senate Procedural Order of Continuing Effect on Entity Contracts for some time now?

Surprised,

Verity Pane

Link to this

From: INFORMATION.LAW
Department of Veterans' Affairs

Good morning Verity Pane,

Thank you for the below email. This list provided to you is for contracts that contain a confidentiality clause, as previously advised and as described by the terms of your request "...that contain a confidentiality clause within them..."

Kind Regards,

Information Law Section | Legal Services and General Counsel Branch
Legal Assurance and Governance Division
Department of Veterans’ Affairs
E: [email address] | W: www.dva.gov.au

show quoted sections

Link to this

From: Verity Pane

Delivered

Attn Position Number 62212962,

Thank you for confirming the scope was correctly applied. It appears that DVA put confidentiality clauses in every contract in makes to prevent them from being subject to FOI.

Putting aside the ethics of that, and that such a practice is contrary to WoG policy, I’d like to refer you back to my question not answered.

Why has DVA failed to met the Senate Procedural Order of Continuing Effect on Entity Contracts, which applies to all Commonwealth agencies, and failed to flag these contracts as having confidentiality clauses in the AusTender database? The requirement to disclose to Parliament twice a year any such contracts has not been followed and DVA is acting in contempt of Parliament.

Why is it that DVA refuses to comply with the orders of the Australian Parliament, and what does it intend to do to rectify this.

Yours sincerely,

Verity Pane

Procedural Order of Continuing Effect: Departmental and agency contracts

Departmental and agency contracts

(1) There be laid on the table, by each minister in the Senate, in respect of each agency administered by that minister, or by a minister in the House of Representatives represented by that minister, by not later than the tenth day of the spring and autumn sittings, a letter of advice that a list of contracts in accordance with paragraph (2) has been placed on the Internet, with access to the list through the department’s or agency’s home page.

(2) The list of contracts referred to in paragraph (1) indicate:

each contract entered into by the agency which has not been fully performed or which has been entered into during the previous 12 months, and which provides for a consideration to the value of $100 000 or more;

the contractor, the amount of the consideration and the subject matter of each such contract;

whether each such contract contains provisions requiring the parties to maintain confidentiality of any of its provisions, or whether there are any other requirements of confidentiality, and a statement of the reasons for the confidentiality; and

an estimate of the cost of complying with this order and a statement of the method used to make the estimate.

(3) If a list under paragraph (1) does not fully comply with the requirements of paragraph (2), the letter under paragraph (1) indicate the extent of, and reasons for, non-compliance, and when full compliance is expected to be achieved. Examples of non-compliance may include:

the list is not up to date;

not all relevant agencies are included; and

contracts all of which are confidential are not included.

(4) Where no contracts have been entered into by a department or agency, the letter under paragraph (1) is to advise accordingly.

(5) In respect of contracts identified as containing provisions of the kind referred to in paragraph (2)(c), the Auditor-General be requested to provide to the Senate, within 6 months after each day mentioned in paragraph (1), a report indicating that the Auditor-General has examined a number of such contracts selected by the Auditor-General, and indicating whether any inappropriate use of such provisions was detected in that examination.

(6) In respect of letters including matter under paragraph (3), the Auditor-General be requested to indicate in a report under paragraph (5) that the Auditor-General has examined a number of contracts, selected by the Auditor-General, which have not been included in a list, and to indicate whether the contracts should be listed.

(7) The Finance and Public Administration References Committee consider and report on the first year of operation of this order.

(8) This order has effect on and after 1 July 2001.

(9) In this order:

"agency" means an agency within the meaning of the Financial Management and Accountability Act 1997;

"autumn sittings" means the period of sittings of the Senate first commencing on a day after 1 January in any year;

"previous 12 months" means the period of 12 months ending on the day before the first day of sitting of the autumn or spring sittings, as the case may be; and

"spring sittings" means the period of sittings of the Senate first commencing on a day after 31 July in any year.

Link to this

From: INFORMATION.LAW
Department of Veterans' Affairs

Good morning Verity Pane,

We note you have raised questions that essentially fall outside the purpose of the FOI Act. Please note that the Information Law Section is committed to assisting you with your FOI requests, which relates to the identification and subsequent release of documents under the FOI Act. Where you have questions that relate to the subject matter, policies, procedures or processes surrounding the documents released to you under FOI, we advise that you should direct those enquiries to [email address].

Kind Regards,
 
Information Law Section | Legal Services and General Counsel Branch
Legal Assurance and Governance Division
Department of Veterans’ Affairs
E: [email address] | W: www.dva.gov.au

show quoted sections

Link to this

From: Verity Pane

Delivered

To Unnamed officer,

The usual opaque response I see. The purpose, aim and objects of the FOI Act is to provide access to relevant documents in a timely and at a no, or rarely, lowest cost way - something DVA does not do.

Informal clarification of the decision notice is inherently part of that process, but I’m not surprised the last thing you want to do is give transparency, given the long history of how much DVA loathes it.

Ms Pane

Link to this

Things to do with this request

Anyone:
Department of Veterans' Affairs only: