Documents relating to sanctions for breaches of Code of Conduct

Response to this request is long overdue. By law, under all circumstances, Australian Public Service Commission should have responded by now (details). You can complain by requesting an internal review.

Dear Australian Public Service Commission,

CONTEXT OF REQUEST

I refer to an article published in The Australian on 8 February 2022. The name of article was Untried lawyers score key positions.

In that article, it was noted that Kate McMullan of the APSC had conducted an investigation and found that:

a) admission as a legal practitioner had been listed as an essential requirement for a registrar role in the Federal Court;
b) a selection committee had not considered this essential requirement when it hired a female candidate to fill the registrar role;
c) the female candidate "was selected over a field of candidates all of whom did have this work related quality."

It has since come to light that:

a) the role in question was an NCF Registrar role in the Federal Court (https://www.righttoknow.org.au/request/u...
b) the role was advertised in Public Service Gazette PS38 of 2016 with a vacancy number of NN10690165 (https://www.righttoknow.org.au/request/u...
c) the candidate selected was Caitlin Wu (https://www.righttoknow.org.au/request/u...
d) Ms Wu's promotion notice was published in Public Service Gazette PS49 of 2016 with a promotion number of NN10698155 (https://www.righttoknow.org.au/request/u...
e) Ms Wu was promoted from an APS4 position into an Executive Level 1 position (https://www.righttoknow.org.au/request/u...
f) the selection panel consisted of Sia Lagos, David Pringle and Andrea Jarratt (https://www.righttoknow.org.au/request/u...
g) Sia Lagos, the current CEO and Principal Registrar of the Federal Court, was the chairperson of the selection panel (https://www.righttoknow.org.au/request/u...
h) Sia Lagos was the Agency Head's delegate for the selection process (https://www.righttoknow.org.au/request/u... and
i) Sia Lagos endorsed the recommendation of the selection panel in her capacity as the Agency Head's delegate on 2 December 2016 (https://www.righttoknow.org.au/request/u...).

A public interest disclosure was made, among other things, about the selection process that saw Ms Wu promoted to the NCF Registrar role to the Commonwealth Ombudsman in 2020. On 11 May 2020 the Commonwealth Ombudsman allocated the public interest disclosure to the Australian Public Service Commission (https://www.righttoknow.org.au/request/r...). In the allocation letter, which had a reference of PID-2020-400006, and which was addressed to Peter Woolcott, the Australian Public Service Commissioner, the author of the letter stated:

"It is the responsibility of your agency to determine how this matter will be handled from this point. However we note that this allocation decision has been made with reference to the broad powers available to consider the matter by virtue of an allocation under the PID Act and under the Public Service Act 1999 (PS Act) (in particular s 41(2)(o))." (https://www.righttoknow.org.au/request/r...).

Section 41(2)(o) of the Public Service Act 1999 provides:

the Commissioner's functions include the following:

(o) to inquire, subject to the regulations, into public interest disclosures (within the meaning of the Public Interest Disclosure Act 2013), to the extent that the disclosures relate to alleged breaches of the Code of Conduct.

The disclosure related to alleged breaches of the Code of Conduct. The Office of the Commonwealth Ombudsman thought the public interest disclosure was of such a nature that it needed to be allocated to an agency other than the home agency, the Federal Court. That is an extraordinary allocation because when deciding to allocate a public interest disclosure to an agency, the authorised officer who has received the disclosure must have regard to the principle that an agency should not handle the disclosure unless some or all of the disclosable conduct with which the information may be concerned relates to the agency (PID Act, s 43(3)(a)(i)).

The public interest disclosure was investigated by Kate McMullan, the Acting Assistant Commissioner, Integrity, Performance and Employment Policy in the Australian Public Service Commission, and the Australian Public Service Commissioner's delegate under the PID Act (https://www.righttoknow.org.au/request/o...). Ms McMullan finalised her report on 9 December 2020 (https://www.righttoknow.org.au/request/o...).

According to her PID report, Ms McMullan made the following findings:

a) "on the balance of probabilities that the recruitment process that ultimately led to the FCSA promoting Ms Wu into this position did not comply with the APS Employment Principles under subsection 10A(2) of the PS Act ..." (https://www.righttoknow.org.au/request/w... and
b) "the relevant employment practices of the FCSA were therefore in contravention of section 10A of the PS Act, and that disclosable conduct, within the meaning of item 1 of the table in subsection 29(1) of the PID Act, has therefore been engaged ... on the basis that the relevant employment practice in relation to the engagement of Ms Wu was conducted in contravention of the PS Act, being a Commonwealth law." (https://www.righttoknow.org.au/request/w...).

Despite making those findings, Ms McMullan though that the most appropriate response to Sia Lagos, David Pringle and Andrea Jarratt deliberately selecting an unmeritorious candidate ahead of meritorious candidates who met the essential selection criteria for the role was:

"I recommend that FCSA staff be provided with guidance and/or training about the APS Employment Principles prior to undertaking any recruitment action, to prevent further incidents of this nature.

I also recommend that relevant FCSA staff familiarise themselves with the APS Code of Conduct, and in particular subparagraph 13(11)(a) of the Public Service Act 1999, which states, relevantly, that employees must at all times behave in a way that upholds the APS Employment Principles."

Marco Spaccavento, the Assistant Commissioner, Workplace Relations at the Australian Public Service Commission has established that Ms McMullan did not comply with procedures established under subsection 15(3) of the Public Service Act 1999 when conducting the investigation into the alleged breaches of the Code of Conduct, even though that is an essential requirement of conducting investigations relating to alleged breaches of the Code of Conduct under paragraph 53(5)(b) of the PID Act (the reason the Commonwealth Ombudsman allocated the PID to the APSC was that the allegations related to contraventions of the Code of Conduct).

The following propositions apply in relation to the Code of Conduct and Code of Conduct investigations:

I) the test for establishing whether an employee has breached the Code of Conduct is an objective one (https://www.mpc.gov.au/case-summaries/ap...
II) the propriety of the actions of a public servant should be assessed by reference to the standard of conduct expected of a public servant, having regard principally to the expectations of the public (Bercove v Hermes (No 3) (1983) 51 ALR 109, 117 - 120);
III) that senior executive service (SES) employees model and promote the APS Values, the APS Employment Principles and compliance with the Code (Public Service Act 1999 s 35(5);
IV) the appropriate sanction in any case will be the sanction that the decision-maker considers meets the object of imposing a misconduct sanction, which is not to punish or exact retribution but to maintain and protect the integrity and reputation of the APS and ensure adherence to proper standards of conduct (Commissioner of Taxation v Day (2008) 236 CLR 163 at [34]–[35]; McManus v Scott-Charlton (1996) 70 FCR 16 at 24–25);
V) Members of the Australian Public Service are enjoined by the Public Service Act (s 13) to act with care and diligence and to behave with honesty and integrity. This is indicative of what throughout the whole period of the public administration of the laws of the Commonwealth has been the ethos of an apolitical public service which is skilled and efficient in serving the national interest (Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146 at [55]);
VI) consistent with the significance of the APS as a constituent part of the system of representative and responsible government, the APS Code of Conduct regime is properly directed to maintaining and protecting an apolitical and professional public service that is skilled and efficient in serving the national interest (Comcare v Banerji (2019) 267 CLR 373 generally);
VII) The APS Code of Conduct regime is in the nature of a civil penalty regime directed at deterring conduct in breach of the Code and thus maintaining and protecting the public and constitutional purposes served by the APS (Comcare v Banerji (2019) 267 CLR 373 at [40]-[44]);
VIII) the purpose of the misconduct regime under the PS Act is protective (rather than punitive) – that is, the regime is intended to protect the public, maintain proper standards of conduct by APS employees and protect the reputation of the APS (Bragg v Secretary, Department of Employment, Education and Training [1996] FCA 476);
IX) in assessing the appropriate sanction (if any), it is necessary to consider the nature and gravity of the misconduct, the need for both specific and general deterrence (to deter any future misconduct by the specific employee and by employees generally) and the personal circumstances of the employee (Comcare v Banerji (2019) 267 CLR 373 at [40]-[45]);
X) As a matter of law, that discretion must be exercised reasonably and, therefore, according to the nature and gravity of the subject contravention. As with other civil penalties, the essence of the task is to put a price on the contravention sufficiently high to deter repetition by the contravenor and others who might be tempted to contravene, but bearing in mind that a penalty of dismissal must not be “harsh, unjust or unreasonable”. Unquestionably, there are cases of breach of s 13(11) that are so serious in the damage done to the integrity and good reputation of the APS that the only appropriate penalty is termination of employment … (Comcare v Banerji (2019) 267 CLR 373 at [40]);

It has been established that Sia Lagos, David Pringle and Andrea Jarratt also constituted the selection committee that selected Murray Belcher as the SES 1 National Judicial Registrar & District Registrar - QLD (https://www.righttoknow.org.au/request/d...), even though he was not allocated an SES1 classification pursuant to rule 6 of the Public Service Classification Rules (https://www.righttoknow.org.au/request/m...), and even though Justice Greenwood went on the record in The Australian to criticise Warwick Soden and Sia Lagos for their roles in denying Mr Belcher lawful promotion to the senior executive service of the APS (Top judge warned of registrar overhaul, published on page 7 of the The Australian on 10 February 2022; https://www.reddit.com/r/auslaw/comments...).

The evidence tends to suggest that Sia Lagos, David Pringle and Andrea Jarratt are repeat offenders when it comes to misconduct relating to employment decisions. It is clear that Kate McMullan considered the allegations relating to Murray Belcher's selection (https://www.righttoknow.org.au/request/r...), which is also under a cloud.

So Sia Lagos, David Pringle, and Andrea Jarratt select an unmeritorious candidate for a Registrar position in the Federal Court, Sia Lagos approves the selection committee's recommendation that this unmeritorious candidate be selected ahead of other candidates, all of whom had met essential requirement of having been admitted to the Supreme Court of a State or Territory, and the appropriate response was a training exercise for the staff of the Federal Court Statutory Agency.

How can Ms McMullan's response to the findings of fact that she made be considered adequate in the light of I - X above?

FOI REQUEST

Under the FOI Act I request access to any and all documents relating to sanction decisions for contraventions of the Code of Conduct set out in the Public Service Act 1999 (Cth).

You may send the documents to me by return email.

Yours faithfully,

raphael

FOI, Australian Public Service Commission

5 Attachments

OFFICIAL

Dear Raphael

 

The Australian Public Service Commission (APSC) is writing to acknowledge
receipt of your request under the Freedom of Information Act 1982 (FOI
Act).

 

The timeframe for responding to your request is 30 days from the date of
receipt. This timeframe may be extended in certain circumstances. You will
be notified if these circumstances arise and the timeframe is extended.

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3500  w: [1]www.apsc.gov.au        

[2]three hexagons[3]twitter icon [4]facebook
icon                          

 

 

 

 

This email and any attachments may contain confidential or legally
privileged information, and neither are waived or lost if the email has
been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.

 

 

 

show quoted sections

FOI, Australian Public Service Commission

7 Attachments

OFFICIAL

Dear Raphael

 

A decision notice is attached.

 

Regards,

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3500  w: [1]www.apsc.gov.au        

[2]three hexagons[3]twitter icon [4]facebook
icon                          

 

 

 

 

This email and any attachments may contain confidential or legally
privileged information, and neither are waived or lost if the email has
been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.

 

 

 

 

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you 
must not review, copy, disseminate or disclose its contents to any other 
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Dear Ms Strangio,

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

I am writing to request an internal review of Australian Public Service Commission's handling of my FOI request 'Documents relating to sanctions for breaches of Code of Conduct'.

In your decision, you stated:

"I have interpreted your request for “...any and all documents relating to sanction decisions
for contraventions of the Code of Conduct...” to relate to sanction decisions related to the
context you described in your request being the investigation conducted by Ms McMullan
regarding Federal Court recruitment."

Accordingly, you refused access to the documents requested.

I did not request “...any and all documents relating to sanction decisions
for contraventions of the Code of Conduct ... conducted by Ms McMullan
regarding Federal Court recruitment."

I requested "access to any and all documents relating to sanction decisions for contraventions of the Code of Conduct set out in the Public Service Act 1999 (Cth)." You have manipulated the plenitude of my request by reference to words that were not contained in the FOI request. I ask that the person who makes an internal review decision does so according to the terms of the FOI request, and not according to interpretative preconceptions.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/d...

Yours faithfully,

raphael

FOI, Australian Public Service Commission

5 Attachments

OFFICIAL

Dear Applicant

 

The Australian Public Service Commission (APSC) is writing to acknowledge
receipt of your request for internal review under the Freedom of
Information Act 1982 (FOI Act).

 

The timeframe for responding to your internal review request is 30 days
from the date of receipt. This timeframe for internal review may be
extended in very limited circumstances. You will be notified if these
circumstances arise and the timeframe is extended.

 

Regards,

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3500  w: [1]www.apsc.gov.au        

[2]three hexagons[3]twitter icon [4]facebook
icon                          

 

 

 

 

This email and any attachments may contain confidential or legally
privileged information, and neither are waived or lost if the email has
been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.

 

 

 

 

 

show quoted sections

FOI, Australian Public Service Commission

6 Attachments

OFFICIAL

Dear Applicant

 

Your internal review (reference LEX212) is now a deemed affirmation of the
decision made by Ms Giorgina Strangio on 29 June 2022 (reference LEX177).

 

The Commission invites you to make a new request under the Freedom of
Information Act 1982 in the terms provided in your internal review
request.

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3720 w: [1]www.apsc.gov.au        

[2]three hexagons[3]twitter icon [4]facebook
icon                          

 

 

 

 

This email and any attachments may contain confidential or legally
privileged information, and neither are waived or lost if the email has
been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.

 

 

 

 

 

 

From: FOI <[email address]>
Sent: Wednesday, 6 July 2022 10:46 AM
To: raphael <[FOI #9018 email]>
Cc: FOI <[email address]>
Subject: SHC22-30229 / LEX 212 - Acknowledgement [SEC=OFFICIAL]

 

OFFICIAL

Dear Applicant

 

The Australian Public Service Commission (APSC) is writing to acknowledge
receipt of your request for internal review under the Freedom of
Information Act 1982 (FOI Act).

 

The timeframe for responding to your internal review request is 30 days
from the date of receipt. This timeframe for internal review may be
extended in very limited circumstances. You will be notified if these
circumstances arise and the timeframe is extended.

 

Regards,

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3500  w: [5]www.apsc.gov.au        

[6]three hexagons[7]twitter icon [8]facebook
icon                          

 

 

 

 

This email and any attachments may contain confidential or legally
privileged information, and neither are waived or lost if the email has
been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.

 

 

 

 

 

show quoted sections

Australian Public Service Commission

 
 
  [1]Office of the Australian Information Reference Code:  
Commissioner ICR_10-50355081-2873
 

 
You submitted a form called: FOI Review_
 
Your form reference code is: ICR_10-50355081-2873

To check the progress of your submission and/or confirm it has been
received you should contact the agency that provides the form. These
details are displayed below.
 
 
Office of the Australian Information Commissioner
[2]http://www.oaic.gov.au | [3]1300 363 992 | [4][email address]
GPO Box 5218, Sydney NSW 2001
 
 
Note: Please do not reply to this auto-generated email.
 

References

Visible links
2. http://www.oaic.gov.au/
3. file:///tmp/tel:1300 363 992
4. mailto:[email address]

Australian Public Service Commission

1 Attachment

Our reference: MR22/01292

 

By email: [FOI #9018 email]

Receipt of your IC review application  

Thank you for your application for Information Commissioner Review (IC
review).

The Office of the Australian Information Commissioner (OAIC) is
considering your application.

If you wish to advise the OAIC of any changes to your circumstances,
including your contact details or if your FOI request has been resolved,
please write to [email address] and quote MR22/01292.

 

Yours sincerely

 

Freedom of Information Regulatory Group

Office of the Australian Information Commissioner

 

 

 

Notice:

The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.

FOI, Australian Public Service Commission

6 Attachments

OFFICIAL

Dear Raphael

 

I refer to your request for IC Review MR22/01254. The Australian Public
Service Commission (the Commission) wrote to the Office of the Australian
Information Commission (OAIC) asking for the opportunity to consult with
you on the scope of the request. The OAIC has agreed to this request,
noting the OAIC encourages agencies and applicants to come to an
arrangement without the need for IC Review.

 

Scope of Primary Request

 

Your primary request dated 14 June 2022, provided a detailed ‘context of
request’ which:

 

o referenced and quoted findings from an investigation conducted by Ms
McMullan;
o asked “How can Ms McMullan's response to the findings of fact that she
made be considered adequate in the light of I - X above?”; and
o requested access to any and all documents relating to sanction
decisions for contraventions of the Code of Conduct set out in the
Public Service Act 1999 (PS Act).

 

The decision maker interpreted the scope of the request, taking into
account the ‘context of request’ provided, as for documents relating to
sanction decisions for breaches of the APS Code of Conduct relating to the
investigation by Ms McMullan.

 

On 29 June 2022, the decision maker notified a decision to you refusing
access to documents under subsection 24(1) of the FOI Act. This full
decision noticed is attached.

 

Internal Review Request

 

In your request for internal review on 29 June 2022, you stated:

 

‘I did not request “…any and all documents relating to sanction decisions
for contraventions of the Code of Conduct […] conducted by Ms McMullan
regarding Federal Court recruitment.” I requested “access to any and all
documents relating to sanction decisions for contraventions of the Code of
Conduct set out in the Public Service Act 1999 (Cth).” You have
manipulated the plenitude of my request by reference to words that were
not contained in the FOI request. I ask that the person who makes an
internal review decision does so according to the terms of the FOI
request, and not according to interpretative preconceptions.’

 

Based on your internal review application, the Commission then viewed the
scope of the request to be significantly broader. In particular, the
request asks for ‘any and all documents,’ and does not provide a time
period to limit the scope.

 

On 8 August 2022, the Commission invited you to make a new FOI request in
the terms provided in your internal review application. Once this new
application was made, the Commission was intending to initiate a request
consultation process with the view to narrow the scope of your request and
identify documents requested with more specificity to enable the request
to be processed.  

 

IC Review Request

 

At the IC Review stage, the Commission conducted preliminary searches for
‘any and all documents relating to sanction decisions for contraventions
of the Code of Conduct set out in the PS Act’ in our current records
management system (which contains records from 2019 to present only).
These searches retrieved more than 1,899 documents. The documents include,
for example:

·         internal and external APS training, guidance and advice about
the APS Code of Conduct;

·         documents and correspondence related to the work of the
Integrity Agency Group;

·         privileged legal advice; and

·         highly sensitive documents and advice related to specific
investigations of APS employees for alleged breaches, or found breaches of
the APS Code of Conduct.

 

Request to consult

 

The Commission is now consulting with you in the interests of expediting
the process and coming to an arrangement as recommended by the OAIC.

 

Given the Commission now better understands the scope of the request, and
noting the large volume of documents that fall within scope of the
request, the Commission invites you to narrow the scope and make it more
manageable. For example, by providing more specific information about
exactly what documents you are interested in, the Commission will be able
to pinpoint the documents more quickly and avoid using excessive resources
to process documents you are not interested in.

 

This consultation period runs for 14 days starting on the day you receive
this email.

 

During this period, you are welcome to seek assistance from the Commission
to revise your request. If you revise your request in a way that
adequately addresses the practical refusal grounds outlined above, we will
recommence processing it.

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3720  w: [1]www.apsc.gov.au        

[2]three hexagons[3]twitter icon [4]facebook
icon                          

 

 

 

 

This email and any attachments may contain confidential or legally
privileged information, and neither are waived or lost if the email has
been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.

 

 

 

 

 

 

______________________________________________________________________ 
IMPORTANT: This message, and any attachments to it, contains information 
that is confidential and may also be the subject of legal professional or 
other privilege. If you are not the intended recipient of this message,
you 
must not review, copy, disseminate or disclose its contents to any other 
party or take action in reliance of any material contained within it. If
you 
have received this message in error, please notify the sender immediately
by 
return email informing them of the mistake and delete all copies of the 
message from your computer system. 
______________________________________________________________________

References

Visible links
1. http://www.apsc.gov.au/
3. https://twitter.com/PublicServiceAU
4. https://www.facebook.com/AusPublicService/

Dear nameless FOI officer,

Issue 1

You claim that the Australian Public Service Commission (APSC) wrote to the Office of the Australian Information Commissioner (OAIC) and asked the OAIC for an opportunity to consult with me about the scope of my FOI request. You also claim that the OAIC has agreed to this request.

Forgive me for my scepticism, but nameless FOI officers in the Legal Services team of the APSC have lied to access applicants in the past. Nameless FOI officers in the APSC have lied about the need to consult with third parties under section 27 or 27A of the FOI Act. See, for example:

https://www.righttoknow.org.au/request/d...

https://www.righttoknow.org.au/request/w...

https://www.righttoknow.org.au/request/w....

How do I know that the OAIC has agreed to the APSC’s request to consult with me about the scope of my FOI request?

Until I see a copy of the correspondence from the OAIC in which agreement to the APSC’s request to consult with me about the scope of my FOI request is recorded, I cannot be sure that you are being truthful.

Please produce a copy of the correspondence from the OAIC to that effect.

Issue 2

You claim that:

“The decision maker interpreted the scope of the request, taking into account the ‘context of request’ provided, as for documents relating to sanction decisions for breaches of the APS Code of Conduct relating to the investigation by Ms McMullan.

On 29 June 2022, the decision maker notified a decision to you refusing access to documents under subsection 24(1) of the FOI Act.”

You then claim:

“In your request for internal review on 29 June 2022, you stated:

‘I did not request “…any and all documents relating to sanction decisions for contraventions of the Code of Conduct […] conducted by Ms McMullan regarding Federal Court recruitment.” I requested “access to any and all documents relating to sanction decisions for contraventions of the Code of Conduct set out in the Public Service Act 1999 (Cth).” You have manipulated the plenitude of my request by reference to words that were not contained in the FOI request. I ask that the person who makes an internal review decision does so according to the terms of the FOI request, and not according to interpretative preconceptions.’

Based on your internal review application, the Commission then viewed the scope of the request to be significantly broader.”

First, Ms Strangio, the FOI decision maker, did not refuse access pursuant to subsection 24(1) of the FOI Act. Ms Strangio refused access pursuant to subsection 24A(1). There is a difference between these subsections.

Second, it is not my problem that Giorgina Strangio, an SES employee, failed to properly read the terms of my FOI request. No part of my FOI request was worded “…any and all documents relating to sanction decisions for contraventions of the Code of Conduct […] conducted by Ms McMullan regarding Federal Court recruitment.”

Third, you claim that “[b]ased on your internal review application, the Commission then viewed the scope of the request to be significantly broader.” That is disingenous. The APSC’s view of my request could not have objectively been affected by the terms of my internal review request because no part of my internal review request broadened the scope of my FOI request. I merely drew to the APSC’s attention to the scope of my FOI request, as it was written on the day I submitted the FOI request.

Fourth, you have conceded the fact that the APSC was conscious, at least at the time that the internal review request was submitted, what the terms of my FOI request were and what that entailed.

Despite apprehending, at the internal review stage, what the terms of the original FOI request entailed, a decision was made, pursuant section 54D of the FOI Act, that all reasonable steps were taken to find the requested documents and Mr Woolcott, the Australian Public Service Commissioner, was satisfied the documents requested could not be found or did not exist. By your own admission, there are 1899 documents that fall within the scope of my FOI request. Therefore, the affirmation decision deemed by the FOI Act to have personally been made by Mr Woolcott is a falsehood.

The staff and the Commissioner of the APSC are not above the laws of the Commonwealth, even though they might think they are. The staff and the Commissioner of the APSC are not above the Freedom of Information Act 1982 (Cth), even though they might think they are. It is not the prerogative of the Australian Public Service Commissioner or his staff to choose to be bound by the laws of the Commonwealth when it suits them. If the APSC realised that there was a problem at the internal review stage, then the APSC should have written to me and to the OAIC to reach an amicable arrangement. It certainly was not the prerogative of the APSC’s staff or its Commissioner to ignore my request for internal review according to the terms of the original FOI request, refuse to engage with the OAIC at the internal review stage, and mislead me about the existence (or otherwise) of the requested documents.

The implication of the concession that there are 1899 documents within the scope of my FOI request is that the Information Commissioner (or the FOI Commissioner) is going to set aside the affirmation decision, deemed to have been made by the Australian Public Service Commissioner, that all reasonable steps were taken to find the requested documents and Mr Woolcott, the Australian Public Service Commissioner, was satisfied the documents requested could not be found or did not exist. The implication of your concession is that the deemed affirmation decision is a falsehood. There are no two ways about that. There are also no two ways about the fact that the deemed affirmation decision will be set aside on the ground of it being false. The issues for the Information Commissioner or the FOI Commissioner will be:

a) whether the 1899 documents fall within the scope of the FOI request;
b) which of those documents should be released in the light of the law.

Issue 3

You state in your correspondence:

“On 8 August 2022, the Commission invited you to make a new FOI request in the terms provided in your internal review application. Once this new application was made, the Commission was intending to initiate a request consultation process with the view to narrow the scope of your request and identify documents requested with more specificity to enable the request to be processed ...

The Commission is now consulting with you in the interests of expediting the process and coming to an arrangement as recommended by the OAIC.

Given the Commission now better understands the scope of the request, and noting the large volume of documents that fall within scope of the request, the Commission invites you to narrow the scope and make it more manageable. For example, by providing more specific information about exactly what documents you are interested in, the Commission will be able to pinpoint the documents more quickly and avoid using excessive resources to process documents you are not interested in.

This consultation period runs for 14 days starting on the day you receive this email.”

First, you claim that the APSC invited me to make a new FOI request in the terms provided in my internal review application. Whatever do you mean? There were no “terms” provided in my internal review request. I merely pointed out that Ms Strangio had failed read the terms of my original FOI request. The terms of my FOI request have been what they have been since you received my FOI request on 14 June 2022. Please do not make up “alternative facts” a la Kellyanne Conwoman.

Second, the APSC invited me to make a new request under the FOI Act on 8 August 2022. That was well before any IC review request had been submitted to the OAIC. If the APSC invited me to make a new FOI request with a view to initiating a request consultation process “to narrow the scope of your request and identify documents requested with more specificity to enable the request to be processed”, then the APSC would have known BEFORE the “IC Review stage” that there were documents within the scope of my FOI request. It would only be on the basis of that knowledge of the existence of documents that the APSC would invite me to resubmit an FOI request. Otherwise, what point would there be in asking me to resubmit an FOI request if, as the Australian Public Service Commissioner himself is taken to have decided, all reasonable steps were taken to find the requested documents and Mr Woolcott, the Australian Public Service Commissioner, was satisfied the documents requested could not be found or did not exist?

Do you understand what just happened? You have conceded that your claim that:

“[a]t the IC Review stage, the Commission conducted preliminary searches for ‘any and all documents relating to sanction decisions for contraventions of the Code of Conduct set out in the PS Act’ in our current records management system (which contains records from 2019 to present only). These searches retrieved more than 1,899 documents”

is a manipulation of the truth and not a statement made in good faith. The APSC was aware, BEFORE the IC review stage, that it had documents within the scope of my request, but the nameless FOI officer in the Legal Service team of the APSC decided to declare, on 8 August 2022, that Ms Strangio’s decision – namely, that all reasonable steps were taken to find the requested documents and the decision make was satisfied the documents requested could not be found or did not exist – was to be upheld even though it was known in the APSC that the affirmation decision that had the imprimatur of the Australian Public Service Commissioner himself was patently false.

Third, on what basis do you think you can dictate that the APSC “is now consulting with you in the interests of expediting the process and coming to an arrangement as recommended by the OAIC” to me? Check the attitude at the door nameless FOI Officer. You are not in a position to dictate any terms to me. The facts are that I made a lawful FOI request, it was not dealt with according to law, a deemed affirmation decision communicating a falsehood remains in effect, a lawful IC review request has been made, and that the deemed affirmation decision will be set aside on the basis of the deemed affirmation decision being false. The IC review request will remain on foot until I withdraw it or it is dealt with according to law. If you want to “consult”, then you must either do so according to the terms of the FOI Act or by appealing to the merciful aspect of my character. Given that nameless FOI officers in the Legal Team of the APSC have persistently lied to access applicants, and given that your current correspondence is dripping with contorted half truths and with lies (e.g. that the terms of my internal review request were anything other than the terms of my original FOI request) what makes you think that I would be prepared to engage in good faith with you, nameless FOI officer? You certainly haven’t engaged in good faith with me.

Fourth, on what provision of the FOI Act are you relying when you declare “[t]he consultation period runs for 14 days starting on the day you receive this email”? I am aware of no such limitation in the FOI Act. Would you please direct me to the relevant provision of the relevant legislation?

Fifth, you state in your email:

“[i]f you revise your request in a way that adequately addresses the practical refusal grounds outlined above, we will recommence processing it.”

Practical refusal grounds may have applied under the FOI Act when Ms Strangio was dealing with my FOI request, but they have no application under the FOI Act to the current state of affairs. The least you can do is try to get the law right before dictating the terms by which you think I will be bound. If you think that I am going to roll over and just take orders form you, think again. Honestly, nameless FOI officer – you are in pressing need of basic people skills.

Consultations in good faith

So far, it is abundantly clear to me that you, nameless FOI officer, have not engaged with me in good faith in your correspondence. For that matter, neither did Ms Strangio when she made her FOI decision, nor did the nameless FOI officer who insisted that there were no documents within the scope of my FOI request, or that the documents could not be found, when that nameless FOI officer declared that Ms Strangio’s decision was being upheld, pursuant to the terms of s 54D of the FOI Act, by the Australia Public Service Commissioner himself.

I think that the APSC has a long way to go to prove itself to me. Fortunately, I am a reasonable and merciful fellow.

There is an internal review decision, which Mr Marco Spaccavento made in respect of an FOI request that was submitted to the APSC earlier this year, that has been bugging me.

On 20 March 2022, Helen made the following FOI request to the APSC:

Under the FOI Act, I request access to any and all documents (including but not limited to classification evaluation documents prepared for the “Legal 2” and “SES1” classification level registrar positions referred to in an Australian article published on 9 February 2022 titled Federal Court boss warned on job rule sidestep) that support acting assistant commissioner Kate McMullan’s conclusion that, in relation to the “National Judicial Registrar role”, “a role review process … had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.”

The request can be accessed here: https://www.righttoknow.org.au/request/d....

On 3 May 2022, Giorgina Strangio provided a decision in response to that FOI request. She stated that there were two documents within the scope of that FOI request. They were:

1. “Email correspondence between Commission and Federal Court of Australia titled ‘PRIVATE AND CONFIDENTIAL’ dated 27 October 2020”; and
2. “Judicial Registrar Recruitment Outcome document prepared by the Federal Court of Australia”.

Giorgina Strangio refused to provide access to the documents.

Ms Strangio’s decision can be accessed here: https://www.righttoknow.org.au/request/d....

Helen applied for internal review of Ms Strangio’s decision on 10 May 2022. Helen’s internal review request can be accessed here: https://www.righttoknow.org.au/request/d....

On 23 May 2022, Marco Spaccavento provided the access applicant with an internal review decision, upholding Ms Strangio’s decision. Mr Spaccavento’s decision can be accessed here: https://www.righttoknow.org.au/request/d....

Helen was unimpressed with Ms Spaccavento’s decision and applied for IC review of his internal review decision. The OAIC acknowledged receipt of Helen’s IC review application, and provided her with a reference of MR22/00825. The OAIC’s acknowlegement email can be accessed here:
https://www.righttoknow.org.au/request/d....

The problem with both Ms Strangio’s decision and with Mr Spaccavento’s decision is borne out in a contradictory decision made by National Judicial Registrar and District Registrar Nicola Colbran of the Federal Court.

On 20 March 2022, Helen made the following FOI decision to the Federal Court of Australia:

Under the FOI Act, I request access to any and all documents (including but not limited to classification evaluation documents prepared for the “Legal 2” and “SES1” classification level registrar positions referred to in an Australian article published on 9 February 2022 titled Federal Court boss warned on job rule sidestep) that support acting assistant commissioner Kate McMullan’s conclusion that, in relation to the “National Judicial Registrar role”, “a role review process … had resulted in certain positions being found suitable for either a Legal 2 or (SES1) position, depending on the relative complexity and work load.”

The FOI request made to the Federal Court is near identical in its terms to the one Helen made to the APSC. The FOI request made to the Federal Court can be accessed here: https://www.righttoknow.org.au/request/d....

On 20 June 2022, National Judicial Registrar and District Registrar Nicola Colbran of the Federal Court rendered her internal review decision. In that decision the Registrar stated:

“Prior to the original decision made in relation to the FOI request by ‘Velan’ on 27 April 2022 and the decision made on 19 May 2022 in relation to your FOI request, extensive searches were undertaken by staff of the Court to identify any documents falling within the scope of your request. I have reviewed these searches and spoken to Court personnel who were involved in this process. The process for undertaking the searches involved consultations with senior staff of the Court, searches of the Court’s human resources and recruitment inboxes, searches of staff emails, as well as searches of the Court’s human resources shared drive, the Court’s electronic documents, records management and information systems. The searches utilised key words based on Court staff’s knowledge of document titling practices in the Court. Staff engaged in extensive consultations to determine appropriate key word searches by reference to the description of the documents in your FOI request.

I am satisfied that the searches undertaken were thorough and comprehensive. I do not believe any further reasonable search or enquiry could find the documents you seek access to. I am satisfied that no documents exist or they cannot be found ...”

The Registrar decided:

“I am satisfied that all reasonable steps have been taken to find
the documents you have requested, but the documents cannot be found or do not exist (see s 24A(1) of the FOI Act). I therefore refuse your request to access the documents described in the FOI request.”

Here is the problem. It is impossible for the APSC to have documents that fall within the scope of the request and which the APSC claims were provided by the Federal Court, and for the Federal Court to claim that no documents within the scope of the FOI request exist. Both Mr Spaccavento and Ms Colbran cannot be correct. As a matter of logic, one of them has to wrong. I happen to know who is wrong.

Now – it is inevitable that the Information Commissioner is going to consider MR22/00825 on its merits; it’s just a question of when.

As I have stated, you and, for that matter, your colleagues have not engaged with me in good faith in respect of my FOI request. As I have stated, I am a reasonable and merciful fellow. Given that it is inevitable that the Information Commissioner is going to consider MR22/00825 on its merits, the Information Commissioner might as well consider that request sooner rather than later.

As a token on goodwill:

A. the APSC can write to the OAIC and provide:

1. “Email correspondence between Commission and Federal Court of Australia titled ‘PRIVATE AND CONFIDENTIAL’ dated 27 October 2020”; and
2. “Judicial Registrar Recruitment Outcome document prepared by the Federal Court of Australia”,

and request that the OAIC consider this IC review request sooner rather than later; and

B. the APSC can provide a copy of the correspondence (sans Documents 1 and 2) to me to prove that it has sent the request for an expedited consideration of MR22/00825 to the OAIC.

What I am asking the APSC for is not burdensome. As I have stated, it is inevitable that the Information Commissioner will consider MR22/00825 on its merits. All I am asking the APSC to do is to request that the matter is given priority and to assist the Information Commissioner in dealing with MR22/00825 by providing the OAIC with:

1. “Email correspondence between Commission and Federal Court of Australia titled ‘PRIVATE AND CONFIDENTIAL’ dated 27 October 2020”; and
2. “Judicial Registrar Recruitment Outcome document prepared by the Federal Court of Australia”,

as part of that request. This is something that is eminently within the power of people within the Legal Services team of the APSC.

If, along with this token of goodwill, the APSC responds candidly and honestly to my queries about:

a) what provision of the FOI Act reliance is being place when you claim “[t]he consultation period runs for 14 days starting on the day you receive this email”; and
b) the correspondence from the OAIC in which agreement to the APSC’s request to consult with me about the scope of my FOI request is recorded,

I give you my word that I will, in good time, assist the APSC in reducing the burden of having to deal with my IC review request – a burden that the APSC has yoked itself with as a direct consequence of the contempt that its staff members, including Ms Giorgina Strangio and the nameless FOI officers in the Legal Services team, have for the laws of the Commonwealth and, in particular, the Freedom of Information Act 1982. It is for no reason other than the contempt that the APSC’s staff members have for legality that the APSC is in the burdensome situation that it finds itself in. So that it is not lost on you, nameless FOI officer, the staff members in the APSC who think they are above the law are the authors of the fate that has befallen the APSC.

Summary

In summary, as tokens of good will:

a) provide me with a copy of the correspondence from the OAIC in which agreement to the APSC’s request to consult with me about the scope of my FOI request is recorded; and
b) indicate the provision of the FOI Act reliance is being place when you claim “[t]he consultation period runs for 14 days starting on the day you receive this email”; and
c) provide me with a copy of correspondence sent to the OAIC requesting the expedited consideration of MR22/00825, and an indication that:

1. “Email correspondence between Commission and Federal Court of Australia titled ‘PRIVATE AND CONFIDENTIAL’ dated 27 October 2020”; and
2. “Judicial Registrar Recruitment Outcome document prepared by the Federal Court of Australia”

have been provided with that request for expedited consideration,

and I give you my word that I will, in good time, assist the APSC in reducing the burden of having to deal with my IC review request.

I am going to give the APSC until 5 pm Canberra time on 13 October 2022 to respond to the entirety of my correspondence. If I have not received a satisfactory response by then, I will write to the OAIC and notify the staff there that I have attempted to engage with the APSC in good faith and that, despite my attempts to engage with the APSC in good faith (and in spite of the APSC’s duplicitous correspondence, such duplicitousness being apparent on the face of the email that was sent to me on 7 October 2022 by the nameless FOI officer in the Legal Services team of the APSC), the APSC has decided to adopt an obdurate position and that I am no closer to assisting the APSC to alleviate the burdens it has yoked itself with.

Yours sincerely,

raphael

Christine left an annotation ()

This is intense. Who are you?

justsayno left an annotation ()

@raphael you are a legend and i'm sorry that your time and energy is being used dealing with obstruction by the APSC.

raphael left an annotation ()

@ Christine: I am Raphael the Indefatigable, bane of the bludger FOI officer.

raphael left an annotation ()

A justsayno: Thanks for your support mate.

If case you are interested, there are some articles on Reddit that identify the background to most of my FOI requests. The articles can be accessed here:

https://www.reddit.com/r/auslaw/comments...

https://www.reddit.com/r/auslaw/comments...

https://www.reddit.com/r/auslaw/comments...

In a letter to Peter Woolcott, the Australian Public Service Commissioner, the Acting Commonwealth Ombudsman Penny McKay stated, on 18 March 2022:

"I am writing to advise the Office of the Commonwealth Ombudsman (the Office) has decided to commence an investigation under the Ombudsman Act 1976 (the Ombudsman Act) into the handling of a Public Interest Disclosure (PID) investigation by your PID Investigator Delegate, Ms Kate McMullan ...

Background

On 11 May 2020, after consultation with the Australian Public Service Commission (APSC), the Office allocated a PID disclosure to the APSC for investigation (PID-2020-400006) ... On 9 December 2020 Ms McMullan finalised a report under s 51 of the Public Interest Disclosure Act 2013 (the PID Act).

Our Office was subsequently contacted by the anonymous discloser (the complainant) on 26 October 2021 who complained the PID investigation by Ms McMullan was deficient.

On 20 December 2021 the Office sent a preliminary inquiry to the APSC under s 7A of the Ombudsman Act, The APSC provided an unredacted copy of the PID Investigator's report on 20 December 2021, and the remainder of its response on 13 January 2022.

Having considered the information provided by the complainant and the APSC, the Office has decided to investigate the APSC's handling of the PID Investigation."

The letter from Ms McKay to Mr Woolcott is published, in redacted form, on this website: https://www.righttoknow.org.au/request/d... , "Attachment 3.1".

The Commonwealth Ombudsman immediately escalated the investigation it is conducting of the APSC's PID investigation to "Category 4". According to an article in The Australian (https://www.reddit.com/r/auslaw/comments...

"Matters at this level, according to Ombudsman documents, include those where there is a reluctance by a government agency to acknowledge issues, one that may potentially be sensitive or involves the head of an agency.

'If our investigation has revealed evidence of serious misconduct, the approach should be escalated to category 4 at the earliest opportunity,' the Ombudsman’s work practice guide reads."

If you would like to ensure that the APSC is held to account for what looks like a "deficient" investigation under the PID Act, I would encourage you, and anybody else interested, to write to committee members of the Senate's Finance and Public Administration Committee, the parliamentary oversight body for the APSC. The current membership of the Senate's Finance and Public Administration Committee (https://www.aph.gov.au/Parliamentary_Bus...) is comprised of:

Senator Louise Pratt;
Senator Richard Colbeck;
Senator James McGrath;
Senator Barbara Pocock;
Senator Tony Sheldon; and
Senator Jana Stewart.

The Senators' email addresses can be found online on the Government Directory: https://www.directory.gov.au/commonwealt...

I think it's also useful to write to committee members of the Senate's Legal and Constitutional Affairs Committee, the parliamentary oversight body for the Federal Court and the Commonwealth Ombudsman. After all, the allegations in the public interest disclosure relate to irregularities in the selection of Federal Court registrars, some of whom were not admitted to the Supreme Court of a State or Territory, despite that being an essential criterion for selection, when they were selected by selection committees comprised of Sia Lagos (the current CEO of the Federal Court), David Pringle (the current CEO of the Federal Circuit and Family Court) and Andrea Jarratt: see, for example,

https://www.righttoknow.org.au/request/s...

https://www.righttoknow.org.au/request/u....

Naturally, if a person isn't admitted to the Supreme Court of a State or Territory, they can't hold a practising certificate, which does beg the question "how the hell were people with no experience as practitioners selected to fill roles in which they would be required to exercise the judicial power of the Commonwealth in the Harris v Caladine [1991] HCA 9 sense?".

FOI, Australian Public Service Commission

2 Attachments

OFFICIAL

Dear ‘raphael’

 

I refer to your email dated Friday 7 October 2022.

 

In response to the APSC writing to you to request consultation on the
scope of IC Review MR22/10254, in summary you requested the APSC:

 

·       provide a copy of correspondence from the OAIC agreeing to the
APSC’s request to consult with you;

·       indicate the provision of the FOI Act the APSC is relying on to
give you a 14 day consultation period; and

·       provide a copy of correspondence sent to the OAIC requesting
expedited consideration of IC Review MR22/00825 which was submitted by
‘Helen,’ and an indication that the relevant documents subject to that IC
review were provided to the OAIC.

 

Attached is a copy of the email from OAIC dated 6 October 2022 agreeing to
the APSC’s request to consult with you (see MR_2201254 – IC Review –
Permission from OAIC to consult.pdf).

 

The APSC acknowledges that the FOI Act does not provide a framework or
timeframe for consulting with an applicant at the IC Review stage. Given
the OAIC has agreed to this course of action and in fact encourages
agencies and applicants to come to an agreement without the need for IC
Review, the APSC is consulting with you on the scope. 14 days was provided
as the APSC viewed this as a reasonable timeframe.

 

The APSC has not asked the OAIC to expedite consideration of IC Review
MR22/00825, however, your correspondence regarding this matter has been
forwarded to the OAIC for consideration (see MR22_00825 – ‘raphael’
seeking expedition of IC review. pdf). The APSC will provide the documents
that relate to IC Review MR22/00825 when it is requested to do so by the
OAIC. ‘Helen’ the FOI applicant for MR22/00825 is best placed to contact
the OAIC to request the matter be expedited.

 

Regards

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

t: 02 6202 3720  w: [1]www.apsc.gov.au        

 

 

 

 

 

 

 

______________________________________________________________________ 
IMPORTANT: This message, and any attachments to it, contains information 
that is confidential and may also be the subject of legal professional or 
other privilege. If you are not the intended recipient of this message,
you 
must not review, copy, disseminate or disclose its contents to any other 
party or take action in reliance of any material contained within it. If
you 
have received this message in error, please notify the sender immediately
by 
return email informing them of the mistake and delete all copies of the 
message from your computer system. 
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References

Visible links
1. http://www.apsc.gov.au/

Dear 'FOI officer',

Thank you for providing Mr Boyd’s email to Ms Sims.

In that email, Mr Boyd states:

“The OAIC encourages agencies and applicants to come to an arrangement without the need for IC review.

If you have not already discussed this request with the applicant, please consult and let me know if a revised scope has been negotiated.”

You have stated:

“The APSC has not asked the OAIC to expedite consideration of IC Review MR22/00825, however, your correspondence regarding this matter has been forwarded to the OAIC for consideration (see MR22_00825 – ‘raphael’ seeking expedition of IC review. pdf). The APSC will provide the documents that relate to IC Review MR22/00825 when it is requested to do so by the OAIC. ‘Helen’ the FOI applicant for MR22/00825 is best placed to contact the OAIC to request the matter be expedited.”

I am willing to negotiate an arrangement with the APSC. Here are my terms:

1. the APSC is to voluntarily provide:

a) “Email correspondence between Commission and Federal Court of Australia titled ‘PRIVATE AND CONFIDENTIAL’ dated 27 October 2020”; and
b) “Judicial Registrar Recruitment Outcome document prepared by the Federal Court of Australia”,

to the OAIC and request that IC review MR22/00825 be considered; and

2. the APSC is to provide me with a copy of the correspondence sent to the OAIC in which it voluntarily provides the relevant documents and the request that IC review MR22/00825 be considered.

Once this is done, I will, in good time, assist the APSC to ease the burden it has yoked itself with. Until then, the terms of my FOI request remain as they were when I first sent my FOI request to the APSC on 14 June 2022.

You have conceded that the deemed approval decision (that no documents exist / the documents cannot be found) is a falsehood.

You have conceded that there are 1899 documents within the scope of my FOI request.

The FOI decision maker, Ms Girogina Strangio, an SES employee, failed to address my FOI request according to its terms and provided me with a decision refusing access to the requested documents on the grounds that no documents exist / the documents cannot be found. That is, by your own admission, a falsehood.

A nameless FOI officer in the legal services section wrote to me on 8 August 2022 and stated in that email:

“Your internal review (reference LEX212) is now a deemed affirmation of the decision made by Ms Giorgina Strangio on 29 June 2022 (reference LEX177).

The Commission invites you to make a new request under the Freedom of Information Act 1982 in the terms provided in your internal review request.”

I applied for IC review of the affirmation decision, deemed by the FOI Act to have been made by the Australian Public Service Commissioner himself, that no documents exist / the documents cannot be found on 10 August 2022.

For the reasons that I set out in my correspondence of 7 October 2022 to the nameless FOI officer who wrote to me, the OAIC was aware that there were documents within the scope of my FOI request well before I made my IC review request to the OAIC and that the decision to communicate the fact that Ms Strangio’s decision had been deemed to be affirmed by the Australian Public Service Commissioner himself was made in the knowledge that the substance of that decision is a falsehood.

The affirmation decision that is deemed to have been made by Mr Woolcott will be set aside by the Information Commissioner or the FOI Commissioner because the decision to refuse to grant access to the requested documents on the grounds that they do not exist / cannot be found is a falsehood (a calculated falsehood to boot).

If the APSC accedes to me very reasonable request, then the APSC and the OAIC can get one with life without the burden of dealing with 1899 documents that are, by your admission, within the scope of my FOI request. If, on the other hand, the APSC decides to adopt an obdurate position by refusing to agree to the reasonable terms of a negotiated outcome, the APSC can hand over all 1899 documents for the Information Commissioner to wade through. Obviously the Information Commissioner will be displeased by the prospect, which will only have come to be because the APSC handled an FOI request unlawfully and then refused to accede to reasonable terms for negotiation. That, of course, is not my problem. I have done everything according to law. Staff members in the APSC, on the other hand, think they are above the law. Well – the members of the “Legal Services” team (how’s that for a misnomer) can deal with the consequences of that contempt for legality.

Yours sincerely,

raphael

Christine left an annotation ()

"I am Raphael the Indefatigable, bane of the bludger FOI officer" - LOL.

Full power to you Raphael.

Dear Australian Public Service Commission,

My offer, set out here: https://www.righttoknow.org.au/request/d..., stands until 12:00 AEDT on 9 December 2022. I will then retract the offer and you can then hand the thousands of documents that you have to the OAIC as part of an IC review.

Yours sincerely,

raphael