EIC online compliance interventions 110-13090000 and Check and update past income (CUPI) service 110-18100129

Posty made this Freedom of Information request to Department of Human Services

The request was partially successful.

From: Posty

Delivered

Dear Department of Human Services,

I request, under the Freedom of Information Act 1982, copies of the following documents:

(1) All documents contained within the file "EIC online compliance interventions 110-13090000" as listed on this page - referred to as your "Operational Blueprint" portal:

http://operational.humanservices.gov.au/...

This includes all five "tabs" on the page -

Background, Process Summary, Process, References and Resources

(2) All documents contained within the file "Check and update past income (CUPI) service 110-18100129" as listed on this page - referred to as your "Operational Blueprint" portal:

http://operational.humanservices.gov.au/...

This includes all six "tabs" on the page -

Background, Process Summary, Process, References, Resources and Training & Support

Both pages state it is "potentially" FOI exempt - a sort of quantum state as if nobody has actually observed it to determine whether it is or is not exempt. this needs to be rectified.

The preferred delivery format is by posting the URL on your FOI disclosure log.

Should there be any charges - please break down the estimated processing time on each of the previously mentioned tabs on the page - including the total of ALL decision making time.

In the interests of speediness, I am willing to consider Administrative Access to said documents should the document be provided within 30 days of the sending of this email. After this time - the FOI act applies as normal in all instances.

Please note - Part I, Item 5 of the Schedule to the Charges Regulations, which provides that a charge may be imposed in respect of a request for access to a document for time spent by an agency ‘in deciding whether to grant, refuse or defer access to the document or to grant access to a copy of the document with deletions, including time spent ... in examining the document’. However, under this provision a charge may not be imposed for the first five hours of decision making time.

Yours faithfully,

Posty

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From: FOI.LEGAL.TEAM
Department of Human Services


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Attachment LEX42754 Registration Acknowledgement Letter.pdf
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Dear Madam/Sir,

 

Please find attached correspondence in relation to your freedom of
information request.

 

Kind regards

 

Molly

Freedom of Information Team
Employment Law and Freedom of Information Branch | Legal Services Division
Department of Human Services

Email: [1][email address]

 

[2]cid:image001.png@01D27D3A.D9CCAB90

 

 

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From: Posty

Delivered

Dear Molly,

Acknowledge your receipt - one request - please provide me with the common courtesy of addressing me by name in future correspondence as you personally have done prior.

Sir/madam/ FOI APPLICANT is too impersonal.

Posty is fine and also easier to type.

Eg: https://www.righttoknow.org.au/request/r...

Yours sincerely,

Posty

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From: Posty

Delivered

Dear Molly,

Boy you lot sure love to cut it down to fine to the line don’t you? In case your outlook reminder fails to help you remind yourself to “actually deliver the rest of the work now” if Molly is away thought I’d send a reminder.

Hugs and kisses.

Yours sincerely,

Posty

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From: FOI.LEGAL.TEAM
Department of Human Services


Attachment LEX 42754 Decision Decision letter.pdf
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Attention: Posty

           

Please find attached the decision letter relating to your request for
access to documents held by the Department of Human Services, under the
Freedom of Information Act 1982.

 

If you have any questions regarding this matter or are unable to open the
attachments please contact me by replying to this email.

 

Kind regards

 

Jas

Authorised FOI Decision Maker

Employment Law and Freedom of Information Branch | Legal Services Division

Department of Human Services

 

Email: [1][email address]

 

This email and any attachments may contain information subject to legal
professional privilege or information that is otherwise sensitive or
confidential. If you are not the intended recipient of this email, you are
prohibited from using or disseminating this communication. If you have
received this communication in error please notify the sender immediately
and permanently delete this email.

 

 

 

 

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From: Posty

Delivered

Dear Department of Human Services (Molly and Jas so far),

Please pass this on to the person who conducts Freedom of Information reviews - running it by Nicola is probably a good idea if you haven't already. Don't worry about Hank.

I am writing to request an internal review of Department of Human Services's handling of my FOI request 'EIC online compliance interventions 110-13090000 and Check and update past income (CUPI) service 110-18100129'.

I feel a bit out of my depth here, you know - arguing against the entire legal team of a government department and their depth of resource, but here we go.

There are two grounds that this decision should be reviewed.

*Firstly*, the documents requested, or alternatively, core aspects of them, do not fall within the scope of the section 47E(d).

My initial request was rejected on the basis that the documents would result in individuals taking evasive action, thereby rendering the Department’s process inefficient. Yet as was acknowledged in the decision:

The material included in the document contains information on how the department assesses the financial circumstances of a customer, including processes relating to debt recovery, debt calculation, evidence to be considered and other relevant issues

Statements as to what qualifies as acceptable evidence and the criteria for a statutory decision are not processes which can be “gamed” or evaded by recipients. The decision-maker’s reasons are overly general, bundling together content of differing form and character. An individual’s past income or their past employment represent immutable questions of fact, capable of confirmation via their past interactions with Centrelink. The documents likely address the relevant evidential thresholds and relevant considerations informing the exercise of a statutory power.

The decision-maker placed reliance upon the AAT’s decision in Duncan v Chief Executive Officer, Centrelink. I would underline that at [32] of that decision it is underlined:

“[Centrelink] now accepts that there is not a case for the whole of any of the Debt Recovery Documents to be exempt. There is no claim now made by [Centrelink] that any of such Documents are exclusively exempt.”

Duncan rather upheld that it would be inappropriate to disclose “the minimum amount acceptable under streamlined withholdings/cash and the minimum period acceptable under streamlined withholdings/cash”. The process of close analysis and redaction in that decision stand in stark contrast to the approach of the initial decision-maker here. Duncan centred on the distinctive fact that the setting of repayment schedule may be influenced by subjective elements such the individual’s emotional state and future circumstances. In contrast, the determination of _the objective fact_ of a person’s past fortnightly income within the OCI relies on corroborating evidence.

It is clear from the description of the documents that a large majority, if not all, of the content, should be treated as analogous to document 15 in Paul Farrell and Australian Customs and Border Protection Service [2015] AICmr52 at [15]. Only a small proportion of this document was found to attract the exemption (even prior to a public interest analysis). This document was:

“...a ten page document that contains a framework analysis of considerations that are relevant to enforced turnback operations, including the legal basis for operations, the operational objective, procedures to be followed, decision making, and managing the response and conduct of boat occupants. The content deals with issues that one would expect to find in a government procedural manual or document. Release of this discussion would add to public understanding of how a difficult and sensitive function is discharged within government. Indeed, at least some of the content matches information that already forms part of public discussion of border control issues.”

The decision-maker has not adequately particularised their claim of the exemption for the majority of the content featured in the requested documents. Section 55D of the Freedom of information Act underlines that the onus for establishing that a decision to refuse access to a document is justified is on the Department.

Turning now to the substance of the stretched claims that disclosing the operational blueprint for decision-making within the OCI process “could potentially increase the risk of customers misrepresenting their circumstances, including their employment income.’.

This claim needs to be tested against the actual nature of online compliance programme. Firstly it is arguable, that the OCI as a “compliance” process, merely cross checks the individual’s own statements made to the ATO with those made to Centrelink. It is arguable that such a process - which generates no “investigative leads” or fresh factual insights, is too rudimentary to be prejudiced. (see Fortitude East Pty Ltd and Australian Trade Commission [2016] AICmr 71 (24 October 2016 - link http://www.austlii.edu.au/cgi-bin/viewdo... ).

The claim of possible prejudice is also undermined by the fact that relevant data matching protocol (outlining the “investigative” core of the process) is already in the public domain as required under relevant data matching legislation. Whatever calculated “fresh” false representations these wildly nefarious individuals might make will thus not be consistent with one of their previous statements to the ATO or Centrelink.

In order to logically claim the operations exemption, as the AG’s FOI Guidelines of 2009 themselves note at 11.3.9, it must be shown that ‘the way in which the agency carries out its functions will need to be changed to its disadvantage’ as result of disclosure.

This is unlikely to occur here.

It is important to note that the Online Compliance Initiative always begins with what the Department terms a discrepancy in representations. The person is _already treated_ as having knowingly or unknowingly misrepresented their income to Centrelink. Unless they produce documentation or corroborating evidence such as payslips or bank accounts, the Department’s policy is to resolve the discrepancy by averaging their income. If the Online Compliance Initiative relies on the uncorroborated, oral representations of recipients make about their circumstances, this is a policy element that has not previously been published.

The initial decision here thus misrepresents the onus clients bear under the OCI. It implies that a recipient can /talk their way out of a debt/, that a person’s income is not objectively verifiable from pay records or bank accounts or that the policy is not to average where corroborating evidence of income is not tendered.

The standard processes which the Department uses to identify knowing misrepresentations are (i) the provision of statutory notice under the social security law (ii) the provision of statutory notices to secure employer or bank documentation.

Both these processes remain available and are easily triggered in the era of automated correspondence. It is notable that under sections 66-72, and section 192 of the social security law, a failure to respond or misrepresentations may result in substantial criminal penalties. In this context it thus impossible to discern quite how “release of the documents may also prejudice the department’s ability to collect the information it needs from income support recipients”.

The internal reviewer should ponder the wise admission of the ATO in its submission to the 2011 review of the FOI Act that:

“...The difficulty for the agency lies in the test for substantial and adverse effect. Whilst it may, in the example of the tax audit, be arguable that the particular FOI request has a substantial and adverse impact on that particular tax audit, it could be argued that a large agency like the ATO could reasonably be expected to reassign people to the audit and so bring the adverse impact below the threshold of what may be substantial.”

The fact that a minority may knowingly misrepresent is a simple, ambient risk applying across all Centrelink decision-making. The internal reviewer will need to explain why it is reasonable to allege that the operational blueprints will trigger such a wave a misrepresentation when the fact of a person’s income is eminently verifiable and such a severe penalty applies to misrepresentations.

The standard processes for addressing fraud or misrepresentation are in no way endangered and no specific risk has been identified.

*Secondly*, with respect to any remaining content which may have the adverse effects, this still must be balanced against the broader public interest in enhancing the public’s knowledge of this system. The decision maker placed reliance upon the decision in IN v Australian Taxation Office, and in particular stated that the document requested was analogous. I’d first query how it is possible to analyse such a factual analogy, given the relevant audit process was not disclosed publicly in IN.

More importantly the decision-maker conflates the operational description of the entire online compliance initiative with “audit processes”. IN applied only to ‘*certain audit processes* used by the ATO when conducting audits and information which initiated the audit’. As noted already, the documents requested do not solely consist audit procedures but extend to operational guidance. They outline a threshold for acceptable evidence which can be tendered or how to calculate a debt where non compliance is found. As a declared data matching programme which relies on comparing two sources of information which a person *must* under law supply, OCI can be distinguished from targeted, inherently selective human audits or investigation. Indeed, after the protocolled data match occurs, income calculation under OCI involves very little active investigation or examination, rather relying on the individual’s submission of documents. The IN ‘analogy’ is not logically unpacked with sufficient precision to support the finding that disclosure is not in the public interest.

The public interest section of the initial decision is also underdeveloped. I would refer to DHS FOI’s unit to the well-establish rulings of the federal court that mere listing or stating that consideration of relevant factors has occurred goes nowhere to establishing active intellectual engagement necessary for a valid exercise of discretion. The initial decision-maker makes no findings whatsoever in relation to the factors favouring disclosure. I am left guessing at the roles these have played in the decision in the sense condemned by the Full Federal Court in Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140.

I submit that disclosure of the document would further the objects of the Act, namely,

(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;

(b) increasing scrutiny, discussion, comment and review of the Government's activities.

The following factors in 11B(3) of the FOI Act tend to support disclosure of document:
(i) reveal the reason for a government decision and any background or contextual information that informed the decision; and
(ii) promote effective oversight of public expenditure.

I also note that the more specific factors outlined by para 6.25 FOI guidelines are active in the case of this document:
(a) FOI Act promotes disclosure
1. inform the community of the Government’s operations, including, in particular, the policies, rules, guidelines, practices and codes of conduct followed by the Government in its dealings with members of the community
2. allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official
...
(f) contribute to the administration of justice generally, including procedural fairness
(h) contribute to the administration of justice for a person
...
(i) advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies

The debate which this document informs is not simply a rehash of issues canvassed in Parliamentary inquiries or Ombudsman’s report. The Department has heavily reformed the OCI, creating a new division of labour between contractors and full time staff. Knowing that Authorised Review Officers face a likely mountain of robodebt appeals, it has created a fresh reassessment process which it has specifically told the Parliament is ‘iterative’, and the outcomes and timelines of which cannot be reported on. This new reassessment process, involves unmapped and under-defined processes such as subject matter expert review, reference to helpdesks and compliance line interactions. These matters are currently under fresh investigation by the Ombudsman, and a broader federal court action against the core methodology of the programme is underway. The information in the document will also enable the public to assess compliance with the published recommendations of the Ombudsman and the Senate inquiry.

There are well established public interest arguments in relation to the OCI FOIs. The following elements of the programme heighten the public interest in disclosure:

- A reverse onus structure which places a premium on the individual’s ability to understand the process and how it works.
- high levels of successful reassessment and appeals of original decisions.
- Despite, this an extremely high number of individuals who undertake no formal assessment,
- the failure to publish criteria for the exercise of information gathering powers
- failure to specifically define circumstances in which recourse will be had to income averaging.

I would highlight the fundamental finding of the Ombudsman that the OCI process is critically dependent on ongoing, effective communication about Departmental practices. I would remind the internal reviewer of Gleeson CJ and Kirby J noted in McKinnon v Secretary, Department of the Treasury (2006) 229 ALR 187 at [5] (link http://www.austlii.edu.au/cgi-bin/LawCit... ):

“Inevitably, it will involve a judgment as to where public interest lies. Such judgment, however; is not made in a normative vacuum. It is made in the context of, and for the purposes of legislation which has the object described above, which begins from the premise of a public right of access to official documents, and which acknowledges a qualification of that right in the case of necessity for the protection of essential public interests (s 3(1 )(b))”

Since the above statement, the Freedom of Information Act has been further strengthened. I remind the internal reviewer that the note at the bottom of Section 47E requires the decision-maker to make a positive finding that disclosure is contrary to the public interest.

Should any damage or adverse effect have been demonstrated it is properly characterised as minor and cannot operate to displace the powerful multiplicity of factors favouring disclosure.

So mull that over your international roast this morning.

Finally, there’s the practicalities and the optics. Releasing this information via a public freedom of information request is the *best possible outcome for everyone*. It should have been public in the first place. Even by initially refusing access to these documents you have signalled their value further.

Ultimately I believe that this is not a matter of whether these documents will come out, it’s a matter of when and how.

Now is the moment where the department chooses; I believe a model litigant would choose early release rather than later.

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

Yours faithfully,

Posty

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From: FOI.LEGAL.TEAM
Department of Human Services


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Attachment LEX 43566 Registration Acknowledgment Letter.pdf
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Dear Posty

 

Please find attached correspondence in relation to your freedom of
information request.

 

Regards

 

 

Freedom of Information Team

Employment Law and Freedom of Information Branch | Legal Services Division

Department of Human Services

[1][email address]

[2]cid:image001.png@01D4F050.3C7C8370

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Posty left an annotation ()

Hi,

If you're just coming to this request anew and wondering why my replies are a little colorful - I have been dealing with DHS for years now and have had to get the OAIC to intervene multiple times over exceedingly small matters that they should not be involved in.

My patience is a little thin for their delay and obstruction tactics, it also spices things up a little.

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From: FOI.LEGAL.TEAM
Department of Human Services


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Attachment LEX 43566 Decision final.pdf
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Dear Posty,

 

Please find attached correspondence in relation to your Freedom of
Information request.

 

Kind regards

 

Katie

Freedom of Information Team
Employment Law and Freedom of Information Branch | Legal Services Division
Department of Human Services

Email: [1][email address]

[2]cid:image002.png@01CE578F.EEB98AC0

 

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From: Posty

Delivered

Folks,

This doesn't read so much as a statement of reasons, but a reiteration of the first with a "YES IT IS".

Out of sheer curiosity - you state:

"Asking for a full explanation of a freedom of information (FOI) decision
Before you ask for a formal review of a FOI decision, you can contact us to discuss your request. We will explain the decision to you. This gives you a chance to correct misunderstandings. "

Given you have no contact information listed other than an email - how would one go about accomplishing this? I'd love to hear a full explanation because I don't think I got one.

Yours sincerely,

Posty

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From: FOI.LEGAL.TEAM
Department of Human Services

Dear Posty,

Thank you for your email.

If you could provide us with a list of any questions you have in relation to the department's internal review decision, we will endeavour to address these in further explanation of the decision.

Kind regards,

Katie
Freedom of Information Team
Employment Law and Freedom of Information Branch | Legal Services Division
Department of Human Services
Email: [email address]

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Posty left an annotation ()

later that night I thought about it and I lodged an external review anyway, at the time I was curious as to *how* they planned to accomplish it.

As I suspected - no other contact form other than email.

*waves to DHS* if you're actually reading this, congrats for actually doing more than the minimum required of you!

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From: Posty

Delivered

Dear Katie,

I recieved a call from the office of the information commissioner the other day advising about a "revised decision" and due to unimportant administrivia my mail was not working at the time that you had on file. the mail you have on file is active, but i also asked for this "revised decision" to be sent through on right to know.

So, if you have a "revised decision" could you please reply with it here.

Yours sincerely,

Posty

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From: FOI.LEGAL.TEAM
Department of Human Services


Attachment LEX45328 55G decision Document for release.pdf
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Attachment LEX45328 55G decision final decision letter.pdf
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Dear Posty

 

Please find attached the varied decision letter and documents in relation
to your request under the Freedom of Information Act 1982.

 

Please note that the material contained in these documents is not
reflective of current departmental process. Documents 1 and 2 are no
longer current Operational Blueprints and have been superseded.

 

Kind regards

 

Nicole

Authorised FOI Decision Maker

Employment Law and Freedom of Information Branch | Legal Services Division

Department of Human Services

 

Email: [1][email address]

 

This email and any attachments may contain information subject to legal
professional privilege or information that is otherwise sensitive or
confidential. If you are not the intended recipient of this email, you are
prohibited from using or disseminating this communication. If you have
received this communication in error please notify the sender immediately
and permanently delete this email.

 

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