Documents Where s 44 Privacy Act Powers Exercised

Verity Pane made this Freedom of Information request to Office of the Australian Information Commissioner

The request was successful.

From: Verity Pane

Delivered

Dear Office of the Australian Information Commissioner,

Given that the OAIC has again fraudulently treated my previous request as one for compiled statistics only (despite it only seeking s 17 compilation if the OAIC wished not to provide original documents) - see https://www.righttoknow.org.au/request/u... - I am now forced to restate my request sans any mention of s 17.

I therefore request, for the period 1 November 2010 (the date the OAIC was established) to 31 July 2017, all documents in possession of the OAIC where the OAIC has explicitly exercised its s 44 Privacy Act powers - not summary compilation, but the actual document that exercises those powers (to avoid all doubt this excludes any document which only just discusses or refers to the potential to exercise such powers, but does not compel the production of documents from a Respondent).

I require the OAIC to conduct a scoping study and consult before it even considers making a practical refusal notification (if it intends to be obstructive).

I consent to the names or reference numbers of the case involved, the applicant, the respondent, or any information which would be personal information be redacted. However the exercise of s 44 powers and the date that occurred is not personal information, nor does it reveal anything that could reasonably prejudice the operation of the OAIC's functions (it is not a secret the OAIC has these powers, and if no information of who or what is involved, the fact that the powers have or have not been exercised in the period in question has no prejudice).

On the basis of information obtained from a former employee, it is my understanding that there has never been an exercise of s 44 powers since Timothy Pilgram became the Australian Information Commissioner (due to his direction) and only a couple of times previously under the former Privacy Commissioner. Therefore this request is neither complex nor voluminous.

Importantly the failure (claimed or otherwise) of the OAIC to implement proper record keeping and archiving is not a valid ground for the OAIC to refuse or seek excessive charges. The exercise of s 44 powers is a serious matter, and would therefore be registered and recorded accordingly.

Even if the OAIC intends to be unethically opaque and refuse access, the OAIC must provide a schedule of all documents that fall within the scope of this limited and extremely specific FOI made.

It is disappointing that the OAIC has forced this to be dealt with as a new and seperate FOI, even though it was most certainly within the scope of the previous FOI. That is a betrayal of the best practice leadership the OAIC is supposed to show here.

Yours faithfully,

Verity Pane

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From: Verity Pane

Delivered

Dear Office of the Australian Information Commissioner,

I wish to remind the Australian Information Commissioner that one of the primary regulatory policy positions approved by him, in the OAIC's regulatory practices, was "Transparency — the OAIC will be open about how it uses its privacy regulatory powers" [Privacy Regulatory Action Policy, June 2015 - the guiding regulatory principles approved by the Australian Information Commissioner are independence, accountability, proportionality, consistency, timeliness and transparency] and to "promote consistency and transparency in the OAIC’s exercise of its regulatory powers" [Guide to Privacy Regulatory Action, June 2015].

While the Australian Information Commissioner publicly reports other aspects of its exercise of privacy regulatory powers, the failure to do so with respect to it compel powers is an inconsistent and opaque action (which seems to be solely based on that disclosing that the current Australian Information Commissioner has directed s 44 is not to be used, is likely to draw adverse commentary, which is not a valid ground for refusing to give such transparency).

Yours faithfully,

Verity Pane

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From: Raewyn Harlock
Office of the Australian Information Commissioner


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Our reference: FOIREQ17/00050

 

Dear Ms Pane

 

Freedom of Information request

 

I refer to your request for access to documents, made under the Freedom of
Information Act 1982 (Cth) (the FOI Act), received by the Office of the
Australian Information Commissioner (OAIC) on 31 August 2017.

 

You requested access to:

 

… for the period 1 November 2010 (the date the OAIC was established) to 31
July 2017, all documents in possession of the OAIC where the OAIC has
explicitly exercised its s 44 Privacy Act powers - not summary
compilation, but the actual document that exercises those powers  (to
avoid all doubt this excludes any document which only just discusses or
refers to the potential to exercise such powers, but does not compel the
production of documents from a Respondent).

 

Timeframes for dealing with your request

 

Section 15 of the FOI Act requires this office to process your request no
later than 30 days after the day we receive it.

 

We received your request on 31 July 2017 and therefore must process it by
Wednesday 30 August 2017.

 

Section 15(6) of the FOI Act allows us a further 30 days when we need to
consult with third parties about certain information, such as business
documents or documents affecting their personal privacy. We will advise
you if this is necessary.

 

Disclosure Log

 

Documents released under the FOI Act may be published online on our
disclosure log, unless they contain personal or business information that
it would be unreasonable to publish.

 

If you would like to discuss this matter please contact me on (02) 9284
9802 during business hours or by email at [1][email address].

 

Regards

 

 

Raewyn Harlock | Director (A/g) | FOI Dispute Resolution

Office of the Australian Information Commissioner

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

Phone:  +61 2 9284 9802 | Email: [3][email address]

 

Protecting information rights – advancing information policy

[4]OAIC banner for email sig

 

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From: Verity Pane

Delivered

Dear Raewyn,

Thank you for your acknowledgement of this FOI within the 14 day acknowledgement period required.

As I have consented to the redaction of the personal information of third parties, there is no basis under s 15(6) to seek delay, to avoid all doubt (I know it's just the template text the OAIC responds to all FOIs with, but given the mischief the OAIC has engaged in to date, worth addressing).

I would also remind the OAIC, that in accordance with its own policy, it will be guided by the principles of Accountability, Timeliness, and Transparency. On Transparency "the OAIC will be open about how it uses its privacy regulatory powers, including by publishing... the regulatory action it takes". Section 44 is a regulatory power of the Australian Information Commissioner, and the OAIC should account for its exercise in a transparent and timely way, although the OAIC failed to do so to date. There is a public interest factor in giving transparency in how the Australian Information has, or has not (as an interview with a former staff member supports, since Timothy Pilgram became the Australian Information Commissioner), exercised these regulatory powers (notably other uses of regulatory powers are published).

Being transparent doesn't require a detailed and unrestricted disclosure, but given the refusal of the OAIC to produce the requested information in summary form (while still claiming the powers were excised recently, but refusing to give any substantiation), and there is a positive statutory obligation to take such steps as are reasonable in the circumstances to give access in a way that meets the needs of the individual and the legal needs of FOI entity, a request for those documents excercising s 44 powers, sans any personal information, is both reasonable, proportional and consistent with the accountability and transparency principle requirements, and access should be provided in a timely fashion.

Yours sincerely,

Verity Pane

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From: Enquiries
Office of the Australian Information Commissioner


Attachment 20170825 FOIREQ1700050 Decision.pdf
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Attachment FOIREQ1700050 Documents.pdf
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Our reference: FOIREQ17/00050

 

Dear Ms Pane

 

Please find attached the decision and documents in response to your FOI
request of 31 July 2017.

 

Regards

 

Enquiries

Office of the Australian Information Commissioner

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From: Verity Pane

Delivered

Dear Andrew Solomon and Caren Whip,

On 1 June 2017, under FOIREQ17/00036, I made a valid FOI Request (administrative access sought in the first instance, but to be treated as an FOI Application if such access was not administratively given) for the following:

"I request administratively, but failing that, under FOI, details on if, and when, the Information Commissioner has ever used the powers provided to him under s 44 and/or s 45 of the Privacy Act. As you'll be aware s 44 allows the Information Commissioner to compel the production of information, documents or require the attendance of a person before him, and s 45 allows the Information Commissioner to examine a witness called under his s 44 powers under oath."

On 29 June 2017, the authorised decision maker Ms Raewyn Harlock confirmed no exercise of s 45 Privacy Act statutory powers had occurred, but despite the FOI Application as made clearly being of a construction to include all documents where s 44 Privacy Act statutory powers were exercised, claimed the OAIC possessed no documents which contained details of any exercise of these s 44 Privacy Act statutory powers and the dates they were exercised (despite inferring such powers had been exercised, but that it would be too hard to look for them):

"as stated in the decision, there are no existing documents containing the information you seek... Further to your comment that I did not search for the documents you requested, the decision states ‘In relation to the exercise of powers under s 44 of the FOI Act, I have asked all relevant staff, including the Assistant Commissioner of the Dispute Resolution Branch, the Principal
Legal Officer and the reporting team"

Internal review was sought on this fraudulent misrepresentation, to which authorised internal review decision maker Ken Richards upheld the decision of Raewyn Harlock and again fraudulently misrepresented that the OAIC had possession of no documents which contained reference to the exercise of s 44 Privacy Act statutory powers, or the dates such powers were exercised. Furthermore Ken Richards, in bad faith, took a narrow and pedantic approach to the FOI scope as made, as only requiring the OAIC to look for an existing document containing summary statistics of such exercise of powers, which amounted to Wednesbury unreasonableness on his part, given the obligations of the Freedom of Information Act 1982 (Cth),

As per the Information Commissioner's s 93A Guidelines, and consistent with Re Anderson and AFP [1986] AATA 79 and Young v Wicks (1986) 79 ALR 448, a request can be described quite broadly and must be read fairly by an agency or minister, and it is a breach of the Act to, in bad faith, take a narrow or pedantic approach to the construction of the scope of an FOI, which the OAIC intentionally did. The artificial and untenable interpretation of the FOI, as the OAIC chose to misleadingly and unreasonably construct, was an abuse of office.

This bad faith conduct required a completely unnecessary new FOI, which simply repeated the original FOI as made, but framed with no leeway for further fraudulent and plainly ridiculous interpretations. This FOI response demonstrates that the OAIC was always able to deal with the FOI as previously made, without undue burden or any voluminous or complex activity, and involved documents which were well known by the staff members allegedly consulted by Raewyn Harlock previously.

In short, the OAIC (if it had been any other agency) would have had adverse findings made against in any s 70 complaint, from the way it conducted itself in clear bad faith and abuse of office, with regards to that original FOI.

So while the OAIC demonstrated a complete betrayal of the leadership it is supposed to show with regards to the Freedom of Information Act, for FOIREQ17/00050, it is of very small consolation that the OAIC and the Australian Information Commissioner did not continue with such a charade for this restated FOI, perhaps realising that any external review would not sustain such fictions as engaged in.

It is very disappointing that it took three goes to get the OAIC to comply with its obligations under the Act, but at least the OAIC did not further waste taxpayer funds by forcing this matter to proceed to legal review. I hope now that my follow up FOIs here will be treated, as required, by the FOI Act, and not subject to similar abuses (although I do concede that FOIREQ17/00036 has now become a central case study in my thesis, which has been of some benefit to illustrate some of the major findings to date).

This FOI may now be closed.

Yours sincerely,

Verity Pane

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