Documents about RACER

Julie 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: Julie

Delivered

Dear Department of Veterans' Affairs,

It occurred to me that understanding a bit more about RACER, DVA’s new claims performance management system would assist me to better understand DVA’s new veteran centric policies, especially given it is a system introduced as part of those ‘reform’ policies.

I therefore seek under FOI any document sent or received by any DVA SES level officer (just to reduce the scope, as otherwise it might unreasonably catch too many documents about inane and irrelevant things), whether by email or other method of passing, about RACER, from today back until 12 September 2017.

If that exceeds more than 50 documents, please exclude any document which also mentions or refers to anything not about RACER, and if that still exceeds 50 documents, can you please compile a list of said documents (with page count for each document) and I will will tell you which ones I want from the list (up to a total of 50).

Yours faithfully,

Julie

Link to this

From: INFORMATION.LAW
Department of Veterans' Affairs


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Dear Julie,

 

Acknowledgement of FOI Request – FOI 24465

 

I refer to your request to access information held by our Department under
the Freedom of Information Act 1982 (FOI Act).  The Department received
your request on 12 September 2018. In accordance with section 15(5)(b) of
the FOI Act, the Department has 30 days to process your request. As such,
a decision on your request is due by 12 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 FOI 24465.

 

Kind Regards,

 

Information Law Team

 

 

Department of Veterans’ Affairs

GPO Box 9998 Canberra ACT 2601

E: [2][email address]

 

 

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

 

 

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Link to this

From: INFORMATION.LAW
Department of Veterans' Affairs


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Dear Julie,

 

Request for Extension of time under s15AA of the Freedom of Information
Act 1982 (FOI Act)

 

FOI 24465

 

A decision is due on your request by 12 October 2018.

 

Unfortunately, the Department will be unable to finalise your request by
this date due to a large competing case load. While it is our goal to
process your request as soon as practicable, we would be grateful if you
would agree to a 30 day extension of time to process your request under
section 15AA of the FOI Act. If you are agreeable to the extension, the
revised due date for the decision will be 11 November 2018.

 

Please advise whether you agree to the extension of time by 5 October
2018.

 

If you agree to an extension, we will advise the Office of the Australian
Information Commissioner (OAIC) of the extension. As part of this, the
Department will provide your name and email address in case the OAIC needs
to contact you in about your FOI request.   

 

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]

 

 

 

Kind regards,

 

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: [2][email address]

 

 

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

 

 

 

 

 

 

 

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Link to this

From: Julie

Delivered

Dear INFORMATION.LAW,

I don’t have enough information from what you have provided to assess whether an extension would be reasonable, or even whether the time frame sought is reasonable.

You have basically just inferred you haven’t done any work to date on this FOI, but now realising the due date is coming up, want to treat the FOI as of it was made next week, instead of nearly a month ago.

Whether this is actually true or not, I have no information to determine either way.

I do note that the Information Commissioner has previously determined that if an agency’s mismanagement or failure to adequately resource its FOI functions had caused a delay, the FOI applicant should not be penalised for it (because it’s not their fault).

While I would consider agreeing to a reasonable extension, I have no information before me from DVA to assess what is reasonable in the circumstances (which may be 30 days or something lesser or not at all).

I am also concerned that despite citing a higher FOI workload, it seems that many people are being told they will having ongoing delays to their FOI by DVA at the moment, so it is unclear what DVA is actually working on right now that is causing these delays (especially if everyone is getting these delay notices).

So, as I do not want to treat you unfairly by just making a decision on very limited information from you, can you please advise the following before Oct 3:
* What work to date has already taken place on this FOI?
* What timetable of steps can DVA outline for this FOI if the extension is granted (maybe I can save you some time by letting you know what’s not necessary)?
* Will DVA agree not to make any charges notices or not to refuse to release anything, if the extension is agreed (there is not much point giving extra time if you have no intent to provide access)?
* Can you provide some transparency about this higher workload? Is it due to more FOIs, or higher priority FOIs, or staff absences or some other factor (and was there a reason DVA did not foresee it)?

I look forward to your response, which will hopefully provide the missing detail necessary to make an informed and fair decision on your application.

Yours sincerely,

Julie

Link to this

From: Julie

Delivered

Dear INFORMATION.LAW,

I am disappointed that my request for any information, beyond just that you are busy and put a low priority on this FOI, to support your extension request has not been provided.

I can only assume, that in failing to substantiate any reasonable grounds, there are no reasonable grounds for extension.

If a response is not given by COB tomorrow, especially as to whether DVA intends to refuse or levy charges if extension is granted, then I can only go on the information before me - which is a generic and unsubstantiated claim that, basically, is the same as ‘the dog ate your homework’.

I had anticipated a professional response from DVA, but it appears there is none forthcoming.

Yours sincerely,

Julie

Link to this

From: INFORMATION.LAW
Department of Veterans' Affairs

Good morning Julie,

Thank you for your replies.

The Department has undertaken steps to process your request, including search requests to identify the documents you have sought access to. The Information Law Section is following up the results of those searches. We are unable to provide you with a timetable as such, but can advise that once the documents are identified and received, this section will need to review the material and then ultimately make a decision on your request. As the documents have not yet been received by this section, we cannot advise at this stage how voluminous it may be. The Department is unable to agree that a charges notice will not be applied nor can we provide an undertaking that full access will provided in lieu of you agreeing to an extension of time.

Although we have asked for an extension of 30 days, we would welcome any extension you are agreeable with.

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

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Link to this

From: Julie

Delivered

Dear INFORMATION.LAW,

So, to summarise your carbon copy response (which is the same response given to all the FOIs of mine you have delayed, despite them being on very different topics and even different in scope capture and even different application dates):

^ Despite, according to Prime Minister and Cabinet guidelines someone else posted here on Right to Know, agencies commit no more than 2 calendar days to the conducting searches phases (and then only up to a maximum of one hour of staff time), the DVA has only just started this step and has yet to complete it (I note the DVA did not state when it first conducted these searches, nor state when they would be completed, despite the DVA being aware there is a hard limit on the time the DVA will conduct such searches);

^ Despite that the DVA has not completed any steps, even though the 30 day s 15(5)(b) deadline has almost expired, the DVA has not and will not commit nor consider what time it will commit to completing all the FOI steps by (which is concerning given the DVA has hard limits as to how much time it will spend on any FOI step, and should be planning and managing FOIs, not asserting that they are treated as ad hoc by the DVA’s specialised FOI staff);

The DVA may cause further delay by issuing a very late practical refusal, or very late charges notice, or very late intent to refuse access decision, all which will extend this FOI by months (possibly years if it goes to IC Review.

It is concerning that, having failed to substantiate any reasonable grounds for the initial failure to handle this FOI in accordance with the statutory obligations, that the DVA has just sat on the FOI for the vast majority of the s 15(5)(b) statutory period, to create delay. That is inconsistent with the aims and objects of the Freedom of Information Act.

It is also concerning that the 30 day extension sought, was not based on any reasonable need assessment, but rather to just claim the maximum extension possible (again inconsistent with the aims and objects of the Act).

You have not provided me with any substantive evidence that would justify that they delays caused were due to factors outside your control, to support extension. There is a worrying lack of transparency here, especially when the DVA has sought extensions to all my FOIs, regardless of simplicity or narrowness of scope.

I do note however that there remains another 8 business days before the s 15(5)(b) statutory deadline expires and that according to the Prime Minister and Cabinet guidance, this is ample time to complete a number of steps (including assessment).

If the DVA can update me on the progress it has made by COB Tuesday 9 October 2018, and if there has been substantive progress made, I will consider an extension at that time.

It is still something of a concern however, that the DVA is processing FOIs in an ad hoc haphazard way (which is the most generous and positive interpretation you can put on in), instead of planning and managing them professionally and competently in line with the aims, objects and purposes of the FOI Act and the various directives and guidelines that apply.

Yours sincerely,

Julie

Link to this

From: INFORMATION.LAW
Department of Veterans' Affairs

Good afternoon Julie,

FOI 24465 - Request to revise the scope of your request

We have received advice from the relevant business area that there are in excess of 100 documents potentially within scope of your request, with most of those documents relating to emails across the SES. As such, we would like to know if you would be willing to revise the scope of your request to the key documents which have been identified as:

• the RaCER business requirements;

• occasional ‘newsletters’ to business (three to date); and

• meeting minutes and papers, which include the above (14 meetings to date).

The business area wanted to note that there may be a misconception that RaCER is a “new claims performance management system”; with advice being that it is rather a "performance reporting system". As such RaCER provides data for performance management rather than take on the role itself.

We would be grateful if you could advise whether you agree to the revised scope.

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

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Link to this

From: Julie

Delivered

Dear INFORMATION.LAW,

So the search process is now completed, and you have a rough schedule of sorts. Does highlight that the search step does not take excessive time, and is of limited duration.

Without requiring a detailed schedule to be created, I would refer you back to the FOI scope as made, which stated:

If that exceeds more than 50 documents, please exclude any document which also mentions or refers to anything not about RACER, and if that still exceeds 50 documents, can you please compile a list of said documents (with page count for each document) and I will will tell you which ones I want from the list (up to a total of 50).

It is likely many of the emails referred to mention RaCER coincidentally but are actually discussing something else, and therefore falls out of scope.

The scope is particularly targeted towards documents (in whatever format) that explain the purposes and functions of RaCER and it’s capabilities, rather than just general references or coincidental inclusion.

As a new system there would have been a brief to the Minister and one to the Secretary of the Department too, about RaCER and what it hoped to achieve.

The context within which RaCER was mentioned in all these documents identified would be quickly evident from a five second skim of the document involved.

As I placed a hard limit of no more than 50 documents on my FOI request, I recommend that those documents the search has returned be whittled down in accordance with the following priority:
* Documents that are not emails, but that are Briefs or Minutes, which only discuss RaCER (and no other topic);
* Other documents that are not emails, which only discuss RaCER (and no other topic);
* Emails that only include attachments, where at least one attachment only discusses RaCER (all other parts of the email and attachments can be excluded from consideration as irrelevant)

If there are still less than 50 documents after that, any email without attachments which only discusses RaCER may also be included, up to the cap of 50 documents.

Duplicates of documents or attachments can be excluded, so to any draft documents or preliminary working papers.

I hope this clarifies the refined scope.

Yours sincerely,

Julie

Link to this

From: Julie

Delivered

Dear INFORMATION.LAW,

You may also find it beneficial to contact whoever was in the DVA project team that implemented RaCER to have them highlight the most relevant documents as to RaCER’s purpose, scope and functions.

Yours sincerely,

Julie

Link to this

From: Julie

Delivered

Dear INFORMATION.LAW,

Have you secretly applied for a s 15AB extension here too? If so, please stop being unethical, and provide me with a copy, so that I can exercise my right to be heard before any decision is made.

Yours sincerely,

Julie

Link to this

From: INFORMATION.LAW
Department of Veterans' Affairs

Good afternoon Julie,

FOI 24465 - Notice of extension request

Further to the below and previous emails, we would like to inform you that we will be seeking an extension of time in accordance with section 15AB with the Office of the Australian Information Commissioner (OAIC) to process your request. For your information, the Department will seek an extension of 30 days, but will aim to finalise the request prior to that timeframe if possible.

As you aware, earlier this month the Department identified a high number of documents relevant to your request and the Department engaged with you to see if the scope could be revised. You asked for a list of those documents to be provided so that you can refine to a maximum of 50 documents. The Department is in the process of putting the list together, but will need more time to consult with you on the final scope and to then assess those documents for release.

It has taken time to source documents subject to your FOI as your request came at a time that is crucial to the RaCER project and resources had to be subsequently diverted to undertake relevant searches.

The terms of our request will be based on the above. As part of this process, your name and email will be provided to the OAIC.

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

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Link to this

From: Julie

Delivered

To INFORMATION.LAW,

While you have just given notice of your s 15AB application already submitted, today, I note you didn’t provide copy of your application.

It would help to understand your application first, before taking any further action.

Indeed it would be, as standard procedure, a step that should be taken when applying for s 15AB extension as I understand from the OAIC’s own guides to agencies that it prefers such a step to be taken, so there is a more clear understanding, improving the chances of a more efficient and transparent process.

So please provide copy of your s 15AB submission, which I hope is not again on the basis of something outside the scope of s 15AB.

Julie

Link to this

From: Julie

Delivered

Dear INFORMATION.LAW,

Also, as previously stated, I have explicitly refused and revoked any implied consent for the DVA to pass my personal information to third parties.

Can you outline on what APP exemption ground you believe entitles you to ignore that, as I may file a privacy complaint otherwise, given explicit revocation of any consent to do so.

Yours sincerely,

Julie

Link to this

From: Julie

Delivered

To INFORMATION.LAW,

Also, from your own correspondence, the DVA did not undertake any searches until quite recently, so it seems yet again the basis of your extension application is not for any complexity (especially given the limit of 50 documents), but rather is an extension due to failures of the DVA to work on this FOI until the last minute.

s 15AB does not have the scope to authorise extensions based on poor workplace management or failure of agencies to process FOIs due inefficiencies or ineffectiveness or failure to resource.

Yet again it seems it is the same ‘the dog ate my homework’ basis as used in the other extension sought, invalidly and outside the limits of s 15AB.

I find myself asking why such an obvious abuse of process seems endemically practiced by the DVA. Is this due to the culture of the DVA senior legal officer (who I understand has resigned just the other day) fostered I wonder, which condoned and celebrated such unlawful tactics?

Obviously something rotten in the state of the DVA, as seems to get more and more prominent as yet another of my FOIs have been unethically railroaded by the DVA.

Julie

Link to this

From: Julie

Delivered

For INFORMATION.LAW,

Timeline
^ FOI made 12 September 2018
^ The DVA acknowledged 17 September 2018, stating ‘The Department received
your request on 12 September 2018. In accordance with section 15(5)(b) of
the FOI Act, the Department has 30 days to process your request. As such,
a decision on your request is due by 12 October 2018’
^ No extension under s 15AA or s 15AB given before expiry of s 15(5)(b) deadline
^ No s 26A, s 27 or s 27A third party consultation extension was claimed before expiry of s 15(5)(b) deadline
^ No charges notice or practical refusal notification was issued before expiry of s 15(5)(b) deadline

This FOI made on 12 September 2018 to the DVA, acknowledged under s 15(5)(a) by the DVA on 17 September 2018, fell due under s 15(5)(b) on Friday 12 October 2018.

No FOI decision was received from the DVA before the expiry of the s 15(5)(b) deadline, and nor has any OAIC grant of extension to the s 15(5)(b) deadline been provided under s 15AB (the DVA may have applied for one in the last couple of days, but the s 15(5)(b) deadline is not extended merely by applying for s 15AB extension, it requires the OAIC to have granted the extension before the s 15(5)(b) deadline has expired)..

As such, this FOI is now deemed by s 15AC of the FOI Act to be a deemed refusal by the principal officer of the DVA.

The principal officer of the agency or minister is taken to have made a decision to refuse access to the document on the last day of the decision period. Agencies still remain obligated to continue to process an FOI request even where the statutory timeframe has expired and an extension of time has been refused or not sought. The expiry of the timeframe gives the applicant the right to apply for review of a deemed decision — it does not remove the agency's obligation to process the request.

So my track record here with DVA is:
^ FOI 24057 - All access Refused, with DVA claiming confidentiality over all documents about the DVA’s Veteran MATES program - still waiting for an internal review decision from the DVA

^ FOI 24297 - All access Refused to the DVA’s Executive Board minutes because it would be ‘prejudicial’ as they would be ‘misunderstood’

^ FOI 24432 - The DVA failed to issue decision before expiry of the s 15(5)(b) deadline, nor obtain any extension, such that this FOI also has become a deemed refusal response.

^ FOI 24434 - One day before the expiry of the deadline, the DVA applies and receives from Carl English at the OAIC an improper s 15AB extension, for not any s 15AB grounds, but because DVA fraudulently alleges the scope requires consultation with the ANAO, despite this FOI being for routine monthly reports the DVA produces internally for its own senior management (that has nothing to do with the ANAO, beyond that the ANAO mentioned in a report that this is an activity the DVA undertakes as part of its internal governance procedures (the documents sought have nothing to do with the ANAO).

^ This FOI - FOI 24465 - gets a bogus notice of extension request (no such thing in the FOI Act) in the date the FOI s 15(5)(b) deadline expires, instead of the decision due (and no s 15AB approval was granted by the OAIC before the expiry), and this becomes the second deemed refusal I’ve received from the DVA this week.

It is telling that not a single FOI I have made to the DVA has been dealt with in accordance with the explicit requirements of the Freedom of Information Act, let alone its objects and aims.

When I was first told of the hostility and unethical behaviour of the DVA, i did not believe the tales could be true, given the extent and breadth of the experiences recounted, but it seems I must eat my hat, as out of 5 FOIs made to the DVA, every single one of them has been met with such grossly contemptuous and unethical conduct from the DVA, that I am simply agog.

I guess that does explain why the DVA keeps having very unflattering news articles about it all the time, clearly there are major issues of concern about the propriety of your culture and staff practices.

Disappointed,

Julie

Link to this

From: FOIDR


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Our reference: RQ18/02970

Agency reference: FOI 24465

 

Julie

By email: [FOI #4803 email]

 

Dear Julie

 

I write to advise you that on 12 October 2018 the Office of the Australian
Information Commissioner (the OAIC) received a request from the Department
of Veterans’ Affairs (the Department) for an extension of time to process
your freedom of information request.

 

The Department has applied for an extension of time under s 15AB of the
Freedom of Information Act 1982 (Cth) because your request is considered
to be complex.

 

I have attached the Department’s extension of time application form for
your consideration.

 

The Department has requested an extension of time to 11 November 2018. I
will take any comments you may have into account when making the decision.

 

Please respond to this email by close of business 16 October 2018. If I do
not hear from you by this date, I will proceed to make a decision on the
basis of the information provided to the OAIC by the Department.

 

You will be notified of the decision once the matter has been finalised.

 

If you have any questions, please do not hesitate to contact me. In all
correspondence please include reference number RQ18/02970.

 

Kind regards

 

 

[1]cid:image001.jpg@01D4453F.0FED8EB0   Megan McKenna |  Assistant Review Officer

Freedom of Information

Office of the Australian Information Commissioner

GPO Box 5218 Sydney NSW 2001  |  [2]oaic.gov.au

+61 2 8231 4292  |  [3][email address]
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References

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From: Julie

Delivered

Dear Ms. Megan McKenna,

Unfortunately the PDF file you have sent is in dynamic XFA form, created in Adobe LiveCycle, which can only be opened in Adobe Reader DC for Mac or Windows or Acrobat Pro. When you try to open these files in an alternative PDF viewer, you just get an error message.

Most people today do not use Adobe Reader DC, so this rather limits who can access the document you attached.

Unfortunately, simply saving the PDF and trying that way does not work.

Adobe recommend that, when publishing to the internet, not to use the dynamic form version (which is only suited to collection) so that it can be opened in alternative PDF viewers.

They recommend that the person who sent the form must convert the dynamic XFA form using the save as options, so as to not restrict which PDF viewers can open and display the file.

Adobe has made the decision that since very few non-Adobe products support these special PDF files, that it is better to avoid publishing in this format altogether.

Please send the file in normal PDF format, not in dynamic XFA format (make it compatible with older PDF formats).

Alternatively you can print out and scan, and then resubmit.

Finally, the fact that an extension was applied for at the last minute by the DVA does not stop the clock in terms of the s 15(5)(b) deadline - in order to stop the clock the extension must be approved before the expiry of the s 15(5)(b) deadline. The onus is on agencies to apply to the OAIC in a timely and appropriate manner for extension, not to throw it through the door on the day of expiry, at the last minute, which is an abuse of process. As such, this FOI still remains a deemed refusal decision and the DVA is still compelled to continue processing it with no stalling.

Yours sincerely,

Julie

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From: FOIDR


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Dear Julie

 

Please find attached a scanned copy of the Department of Veterans’ Affairs
extension of time application form.

 

If you have difficulties accessing the document please contact me and I
will endeavour to provide an alternative solution.

 

I will be grateful for a response by midday 17 October 2018.

 

Kind regards

 

 

[1]cid:image001.jpg@01D4453F.0FED8EB0   Megan McKenna |  Assistant Review Officer

Freedom of Information

Office of the Australian Information Commissioner

GPO Box 5218 Sydney NSW 2001  |  [2]oaic.gov.au

+61 2 8231 4292  |  [3][email address]
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From: Julie

Delivered

Dear Ms Megan McKenna,

Unfortunately I only discovered your reply late today when I went to check on this outstanding matter. Normally Right to Know sends an update email whenever a party makes a response, but for some reason one was not generated here (not even in my junk mail folder).

As I work full time, I only check my personal emails each evening. Giving half a day to reply, when the DVA was given ample time to notify and apply for s 15AB (but which did so in secret until it was done instead), seems disproportionate.

I will read and review tonight though, so you have a response for tomorrow morning.

As I note the DVA has sought another full 30 days extension, the reasonable extra time asked for (an evening) will not prejudice any party, especially given this FOI has already gone deemed refusal (given no extension granted before s 15(5)(b) deadline expired).

Yours sincerely,

Julie

Link to this

From: Julie

Delivered

Dear Ms Megan McKenna,

Timeline:
12 September 2018 - FOI request made
17 September 2018 - FOI acknowledged and given reference 24464
27 September 2018 - The DVA seeks a further 30 day extension under s 15AA because the DVA has ‘a large competing case load’ (this followed an access refusal for FOI 24057 and FOI 24297, another last minute s 15AB extension for FOI 24434 for an alleged need to consult ANAO about internal reporting documents of the DVA that had no involvement with ANAO, and a deemed refusal resulting for this FOI)
27 September 2018 - I seek further information from the DVA to assess their s 15AA request, that the Information Commissioner Guidelines states agencies should have assessed before seeking such extensions (such as the steps already completed, what steps remain, how much time those steps remaining will need (by each step), whether a practical refusal or charges notice is likely, etc), as ‘a large competing case load’ is vague, opaque and insufficient to understand what would be reasonable in the circumstances (and indeed, whether I could assist by modifying the scope or indicating what does not need to be included)
2 October 2018 - After the DVA did not respond or acknowledge my request for further details to support their request, I pointed out that failure could only be inferred as being because the DVA had not identified any substantive grounds to support its extension request, and therefore was an unethical abuse of process.
3 October 2018 - The DVA responded to the second follow-up, but again only provided vague, opaque and non-descriptive reasons it was seeking the extension - such as the search activity was not complete, despite only 7 business days remaining before the deadline expired.
3 October 2018 - I complained to the DVA about its failure to give me adequate information on which to assess their s 15AA extension request and its repetitive use of generic and vague excuses that lacked any real detail, and that was interfering with my capacity to assess their extension request.
3 October 2018 - The DVA advises it has completed its searches and that it has uncovered over 100 documents about RaCER, but it requested a revision in scope for only three types of general information documents (which were not directly relevant to scope)
3 October 2018 - I ask why the DVA has ignored my FOI scope which limited the documents in scope to only 50 documents maximum, that had particular metadata (which did not relate to the ones that the DVA wanted to substitute). I did however revise my FOI scope to explicitly identify what priority documents had, and to confirm after 50 documents had been identified as fitting that scope, no further searches were required. Notably, despite being open to staged access, or to helping the DVA identify which of the identified documents would be of interest, the DVA did not provide any schedule of documents or any identifying details.
3 October 2018 - I also indicated that the DVA has a RaCER project team, and that the Information Law officer. i gut find it useful to consult with them to help identify the most relevant documents
10 October 2018 - After multiple s 15AA extension requests from the DVA, and one subsequent secret s 15AB application, I explicitly asked the DVA to identify if it intended to do the same with this FOI
12 October 2018 - s 15(5)(b) expiry - DVA gives notice it has applied for s 15AB extension on the last day of the s 15(5)(b) period. As the extension had not been granted by the 12 October 2018, which is required to stop the s 15(5)(b) clock, the FOI became a deemed refusal on 13 October 2018.
15 October 2018 - The OAIC advised it had received a s 15AB request from the DVA.

The DVA have stated in their s 15AB application to the OAIC:

“Initial indications were provided that the request was too resource intensive as the request fell at a time that was crucial to the RaCER project (which is likely to also be a supporting reason for delay in obtaining documents).”

The DVA gave no notification to me or anyone else until 27 September 2018, 15 days after the DVA had received the FOI, that there was any delay likely.

The reasons given on 27 September 2017 by the DVA do not refer to the alleged ‘crucial’ demands on the RaCER project team given on 12 October 2018 to the OAIC, but instead state that the reasons for delay as that the DVA FOI team are under “a large competing caseload”. That does not match these later claims.

Similarly, the DVA response on 3 October 2018, does not claim the delay is due to the alleged ‘crucial’ demands on the RaCER project team given on 12 October 2018 to the OAIC, but instead state that the reasons for delay are that the DVA Information Law area have only recently tasked the relevant business area to conduct searches, and is awaiting the results. That same afternoon, the DVA advises me that the searches by that relevant business area have been completed, but the issue is that the number of documents identified exceeds 100 documents.

Again, in that response, the DVA makes no claim that the business area is suffering from ‘crucial’ demands, indeed it even includes advice about RaCER from that business area in its response (which, if it was busy, it would not have time to draft and provide).

It was only on 12 October 2018, when the DVA stated it had applied for s 15AB extension, that it first made the claim that the FOI came at a time that is crucial to the RaCER team, alleging resources had to be subsequently diverted to undertake searches (note the DVA confirm the searches were conducted and completed, despite this alleged ‘crucial’ time, when it unlikely such searches would take place, as FOI requests do not divert the critical operational needs of Departments anywhere).

Notably, the DVA has provided no evidence or even detail about what the alleged ‘critical’ issue is, or why, despite the alleged ‘critical’ period, the relevant business area still completed the search tasks anyway (and therefore their job is over, as the assessment and classification for release is handled by Information Law, not the business area responsible for RaCER).

Despite DVA’s claims, the relevant business area appears to have completed the searches the Information Law area asked for, on the same day they asked for them to be done. It certainly is unlikely, therefore, that the cause of the delays were due to the RaCER business area, but were, as stated by the Information Law area, due to the Information Law area allegedly having ‘a large competition case load’ which is the same excuse it has used for a few months now on Right to Know to number of FOI requests.

“The Department... has attempted to have a list created of the available documents as requested by the applicant... we requested the documents be sent to us so we can create that list... Our intention is to create the list and consult with the applicant”

Again, this confirms that the search activity is complete and what is outstanding instead is the FOI delegate’s assessment and drafting of the decision notice, contrary to the main reason given by the DVA for extension.

Despite the DVA routinely undertaking these tasks, it has not provided any timeline for this activity or even an estimated date of completion (and hasn’t ruled out it may seek further extensions, or indeed seek to stop the clock through the issue of potential practical refusal notifications or charges notifications or indeed refuse all access).

“The documents are technically complex and we will need to engage with the subject matter experts on its contents and with release. Those documents are very likely to require redactions to exempt material based on the nature of the information being sought, but this cannot be confirmed until the documents have been agreed to via the list”

The DVA has not provided the OAIC with any sample of documents to support these claims, nor any detail either, beyond vague claims.

The scope of the FOI made, explicitly limited the documents to only those sent or received by DVA SES level officers, who would not be receiving overly technical documents like schematics or engineering documents, given SES officers are senior managers, not technical contractors, and don’t go down to that level of detail (although EL1-APS3 employees might, but they would not be sending such documents to SES officers, who would also not have that level of understanding any more than the Information Law employees would).

Recent history of the DVA FOI extension claims shows that the DVA Information Law area have routinely applied for extensions as a matter of normal business practice, simply to discourage FOIs it doesn’t like.

For example:
https://www.righttoknow.org.au/request/c...
8 October 2018 - the DVA seeks 30 day s 15AA extension, again for “a large competing case load” within Information Law area - notably for a topic that has nothing to do with RaCER

FOI Applicant seeks further details to support extension. The DVA does not provide any, but instead seeks 15AB extension from the OAIC on 15 October 2018.

https://www.righttoknow.org.au/request/c...
27 September 2018 - The DVA seeks 30 day extension under s 15AA because the Information Law area has “a large competing case load”. I seek further information from the DVA to be able to assess their request.
3 October 2018 - The DVA provide the same identical generic response alleging the are following up with the business area on the search for documents (notably the topic of this FOI has nothing to do with RaCER)
10 October 2018 - Without notice or notification or right to be heard, the OAIC writes to me stating it has granted the DVA an extension under s 15AB - extension was allegedly granted on claims the DVA needed to consult with the ANAO, despite s 15AB not applying to third party consultations, and the documents sought having nothing to do with ANAO, but were internal performance reports generated by the DVA, for internal use.

https://www.righttoknow.org.au/request/l...
27 September 2018 - The DVA seeks an additional 30 day extension under s 15AA again because of an alleged “large competiting case load” with Information Law. I seek additional information in able to allow me to assess their request.
3 October 2018 - The DVA provide the same identical generic response alleging the are following up with the business area on the search for documents. There may be a possible tangential connection with RaCEr, but again no mention of any ‘crucial’ activity impacting the search, rather that the search request was only recently made by Information Law.
12 October 2018 - FOI goes deemed refusal due to non-response from the DVA.

https://www.righttoknow.org.au/request/e...
FOI made on 16 July 2018 first has clicked stopped by practical refusal notice, which despite having scope reduced by applicant on same day, receives no response from agency until fortnight later, and which the DVA subsequently applies for a 30 day s 15AB extension on the ground that staff members are away and it needs records that are off site, and the Information Law area will have to compile a schedule.

Despite that the DVA provided no evidence to support these claims, Carl English of the OAIC grants DVA a further 30 days extension because “it is anticipated that the Department will provide a well-reasoned and better managed decision”.

Instead, on the second last day of the extension period, the DVA issued a charges notice for $600+ and no decision has ever been provided, let alone any documents.

^^^^^^^^

The evidence is that the DVA uses generic templates to cause delays and seek extensions, that are vague and opaque, and for which the DVA has not provided any supporting evidence, beyond unsupported claim.

The DVA has a history of using practical refusal, charges and s 15AA and s 15AB notices to cause repeated delays to FOIs it does not like, regardless of its capacity to complete them.

It engages in a systemic and ingrained gaming of FOI, to impede lawful right to access.

The OAIC has often failed to adequately test the DVA’s claims and has even approved s 15AB extensions for reasons outside those permitted by s 15AB, ultra vires, and often without providing those who these decisions affect, any opportunity to be heard, in breach of common law natural justice principles.

####

Summation: The DVA has substantially changed its story about the causes of the delay, and even changed its story about the status of the search (which by all measures is complete, but awaiting Information Law to complete its assessment and decision notice drafting activities).

These inconsistencies, together with the lack of actual evidence from the DVA, to substantiate these claims, is weighed against the granting of a s 15 AB extension (especially since the DVA clearly intends to create a further delay).

However I note the history of the OAIC is to unconditionally grant agencies s 15AB extensions (with rejections being below 1% of all requests by agencies), even when an agency gives no evidence. I also note that the OAIC even grants applications based on grounds not recognised by s 15AB, despite at law, the OAIC having no such power to grant such s 15AB extensions in such circumstances.

So I am not optimistic that this will be dealt with ethically by the OAIC, but I have to go through the steps regardless, before further action can be taken. After all, there is always the possibility that even the OAIC might find multiple generic s 15AB applications of the DVA as just a bridge too far.

Yours sincerely,

Julie

Link to this

From: FOIDR


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Our reference: RQ18/02970

Agency reference: FOI 24465

Julie

 

By email: [FOI #4803 email]

Extension of time under s 15AB

Dear Julie

Please find attached correspondence in relation to the processing of your
FOI request.

 

Kind regards

 

 

 

[1]cid:image001.jpg@01D4453F.0FED8EB0   Megan McKenna |  Assistant Review Officer

Freedom of Information

Office of the Australian Information Commissioner

GPO Box 5218 Sydney NSW 2001  |  [2]oaic.gov.au

+61 2 8231 4292  |  [3][email address]
[8]Subscribe
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newsletter

 

 

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Link to this

From: Julie

Delivered

Dear Ms Megan McKenna,

I acknowledge your letter of 18 October 2018, in which you state:

“As a delegate of the Information Commissioner, I am authorised to make decisions on applications for extensions of time under s 15AB of the FOI Act. I have decided to decline the application.

The effect of this decision means that the Department is deemed to have refused your request. It is now open to you to apply for an Information Commissioner review of the deemed decision of your FOI request.”

As I note that the OAIC almost never refuses s 15AB applications from agencies, expect for the most extreme cases, I appreciate that the OAIC has concurred with my assessment that s 15AB extension in this case would be highly inappropriate and contrary to the Freedom of Information Act 1982.

The s 15AB application made by the DVA simply was not within scope of s 15AB, and appears to have been made in intentional bad faith.

At this time I do not intend to apply for IC Review, as due to this FOI having a deemed refusal decision, the statutory obligation remains on the DVA to complete this FOI at the earliest reasonable opportunity.

I would like to give the DVA reasonable opportunity to change track, and deal with this FOI properly, before seeking further review. Given the DVA has already received an additional six days already from the date the s 15(5)(b) deadline expired, the DVA should already have caught up on time they lost for failing to action the FOI when they first received it, and should have a decision ready by no later than the end of Monday 22 October 2018.

If it doesn’t, it can only be assumed that it has refused to do so again as part of an intentional bad faith motive to deny lawful access.

Yours sincerely,

Julie

Link to this

From: INFORMATION.LAW
Department of Veterans' Affairs


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Good morning Julie,

 

FOI 24465 - Table of available documents

 

Further to your FOI request received by the Department on 12 September
2018, please find attached a table identifying the available documents to
assist you in specifying which documents you seek access to.

 

Kind Regards,

 

Information Law Section | Legal Services and General Counsel Branch

Legal Assurance and Governance Division

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: Julie

Delivered

To INFORMATION.LAW,

Should I be surprised that DVA has taken an additional two weeks (half the additional time they demanded) to issue a schedule of documents identified in the late search conducted more than two weeks ago?

No, I guess not given the history of how DVA treats FOIs.

Should I be surprised that despite it taking it six weeks to get to this point (and more than a fortnight after a full decision notice was supposed to be issued) the listing of 75 documents (oddly less than the over 100 documents claimed in DVA’s s 15AB extension claim) often lacks sufficient information to determine the relevance of the document (listing a document as ‘Attachment 1’ tells me nothing about the document).

No, I guess not given the history of how DVA treats FOIs again.

I honestly don’t understand your Department’s behaviour here. Are you having a sulk because your dodgy s 15AB extension got knocked back?

It’s not really using your best efforts to provide this now long overdue decision notice.

It does seem, whether by hook or by crook, you will get a minimum additional 30 days whether you are entitled to them or not, and certainly when you had no need for them other to demonstrate your hatred of FOI applications.

I’m surprised by this, as I understood Australia had signed up to the Open Government Partnerships program, but DVA is neither open nor friendly to transparency.

This harms you more in the long run than anyone else, but I guess this hostile culture of yours to FOI is so ingrained, it is immovable.

Disappointing to say the least.

I shall endeavour to try and divine the relevance of the material from the scant (and sometimes missing) information provided, but you certainly are t helping me to help you, over the weekend.

Gobsmacked,

Julie

Link to this

From: Julie

Delivered

To INFORMATION.LAW,

While the vague descriptions made this task hard, and it is clear that DVA have split parts of documents up to create a longer list (why would a briefing pack, for a project management board, be separated up, ditto for splitting one email 4 ways), I have identified 25 items on your list that may be put aside (including some with a large number of pages.

You need not assess and consider Items 12, 10, 25, 2, 35, 41, 46, 50, 54, 56, 60, 64, 65, 68, 72, 8, 12, 70, 62, 6, 30, 28, 48, 30, 44 (25 items).

The remaining items should proceed for this now very long overdue decision notice.

Sincerely,

Julie

Link to this

From: INFORMATION.LAW
Department of Veterans' Affairs

Good afternoon Julie,

Thank you for the below response. The Department will continue to process your request for the remaining documents.

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

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Link to this

From: Julie

Delivered

To INFORMATION.LAW,

Given the conduct by DVA to date in *not* processing this long outstanding FOI, including putting in a s 15AB application on the last day (a long trend of yours I notice) that contained a number of false statements that even the OAIC wouldn’t swallow them, I’ll take that statement with a large block of salt.

It would be worth DVA considering how their hostility to FOI, evidenced by these repeated time-intensive bad faith stunts, far exceeds the time actually needed to process the FOI, by a magnitude of order. This is not only wasteful, but an abuse, that perpetuates a culture where corruption and illegality can thrive.

I’m not sure why DVA’s corporate governance is clearly broken and why DVA embraces this corrosive culture with such gusto.

Yours sincerely,

Julie

Link to this

From: Julie

Delivered

To INFORMATION.LAW,

As two months have passed, on this deemed refusal FOI, still without any decision notice issued - exceeding even your own extension sought, that the OAIC declined to approve - it might be a good idea to give an update.

This is a long overdue FOI, yet the Department appears to be approaching it sluggishly and without any effort to resolve it.

Sincerely,

Julie

Link to this

From: Julie

Delivered

As the Department of Veterans‘ Affairs has repeatedly failed to be reasonable, I have had no choice but to refer this unethical behaviour to the Office of the Australian Information Commissioner.

I would highlight the unprofessional bad faith behaviour by Veterans’ Affairs, in repeatedly forcing decisions to deemed status, then continuing to ignore the Department’s obligation to provide a decision notice.

Julie

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Things to do with this request

Anyone:
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