Dear Australian Public Service Commission,

According to articles published in the Australian on 8, 9 and 10 February, acting assistant commissioner Kate McMullan of the Australian Public Service Commission investigated recruitment practices of the Federal Court.

I would like access to all emails (including attachments to those emails) exchanged between Sia Lagos and Kate McMullan in relation to the investigation conducted by Ms McMullan.

Yours faithfully,

Louise

FOI, Australian Public Service Commission

5 Attachments

OFFICIAL

Dear Applicant

 

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

6 Attachments

OFFICIAL

Dear Applicant

 

The scope of your recent FOI request includes one or more documents
containing either personal information or business information about one
or more third parties. In such circumstances, the Commission consults with
relevant third parties about the disclosure of the information.

 

The timeframe for responding to your request is therefore extended by 30
days under subsection 15(6) of the Freedom of Information Act 1982.

 

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.

 

 

 

 

From: FOI <[email address]>
Sent: Monday, 28 February 2022 12:59 PM
To: Louise <[FOI #8518 email]>
Cc: FOI <[email address]>
Subject: Request SHC22-4120 [SEC=OFFICIAL]

 

OFFICIAL

Dear Applicant

 

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: [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

FOI, Australian Public Service Commission

8 Attachments

OFFICIAL

Dear Applicant

 

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.

 

 

 

 

From: FOI <[email address]>
Sent: Monday, 28 March 2022 1:52 PM
To: Louise <[FOI #8518 email]>
Cc: FOI <[email address]>
Subject: 4120 Extension of time [SEC=OFFICIAL]

 

OFFICIAL

Dear Applicant

 

The scope of your recent FOI request includes one or more documents
containing either personal information or business information about one
or more third parties. In such circumstances, the Commission consults with
relevant third parties about the disclosure of the information.

 

The timeframe for responding to your request is therefore extended by 30
days under subsection 15(6) of the Freedom of Information Act 1982.

 

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.

 

 

 

 

From: FOI <[9][email address]>
Sent: Monday, 28 February 2022 12:59 PM
To: Louise <[10][FOI #8518 email]>
Cc: FOI <[11][email address]>
Subject: Request SHC22-4120 [SEC=OFFICIAL]

 

OFFICIAL

Dear Applicant

 

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: [12]www.apsc.gov.au        

[13]three hexagons[14]twitter icon [15]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

Dear Australian Public Service Commission,

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 'Emails between Sia Lagos and Kate McMullan'.

In your letter of decision you stated:

I have decided to refuse access to 17 documents because I consider the documents are exempt in full.

Attachment A sets out the grounds on which the documents are exempt.

My reasons are set out in Attachment B.

You claim to have identified that 17 documents fell within the scope of my request.

In your reasons for decisions you stated:

a) that you determined that all 17 documents were exempt in full (attachment B; para 1);
b) that all documents were conditionally exempt documents containing deliberative matter (attachment B; para 3);
c) a deliberative process includes the recording or exchange of opinions, advice, recommendations, a collection of facts or opinions and interim decisions and deliberations (attachment B; para 4);
d) the documents that fall within the scope of my request contain material which record the deliberative processes of the Commission, being deliberative material related to a PID investigation conducted by the Commission, and that the materials constitute an exchange of opinions, advice and recommendations (attachment B; para 5);
e) that you have decided that release of material contained within the documents under the FOI Act would likely undermine the protections provided under the PID scheme, and likely discourage current and former public officials to make PID disclosures or to involve themselves in PID investigations (attachment B; para 11);
f) that success of any PID investigation process relies heavily on the willingness of individuals to participate in the PID scheme in a frank and candid manner (attachment B; para 11);
g) that you consider that the release of the documents would likely have a larger effect of inhibiting or discouraging Commission staff to freely and effectively communicate on matters relating to the PID Act, including in the consideration and assessment of material subject to a PID investigation (attachment B; para 12);
h) disclosure of information relating to allegations, inquiries and investigations under the PID scheme would, or could reasonably be expected to, have a substantial adverse effect on the management or assessment of Commission staff and on the proper and efficient conduct of the operations of the Commission (attachment B; para 14);
i) the documents contain the names and other personal information of public servants and other individuals, including information about their qualifications and employment history (attachment B; para 17);
j) to the extent that the documents include personal information, those parts are conditionally exempt from disclosure under section 47F of the FOI Act because disclosure would involve the unreasonable disclosure of multiple person’s personal information (attachment B; para 19);
k) on balance, the disclosure of the documents would be contrary to the public interest because the material contained in the documents is conditionally exempt under 47C, 47E and 47F of the FOI Act, and that the documents are, therefore, exempt from disclosure in full (attachment B; para 24).

Some of the documents you identified were:

a) 7.2 - Vacancy Notice;
b) 7.3 - Applicant Application;
c) 7.4 - Recruitment Exercise Approvals;
d) 7.5 - Letter of Offer dated 5 December 2016;
e) 7.6 - Public Service Act 1999 extract; and
f) 7.7 - Public Service Act 1999 extract.

All of the identified documents were refused access to on three exemption grounds, being exemptions under each of ss 47C, 47E and 47F.

I do not intend to exhaustively identify errors of reasoning that you have made. A few illustrative examples will suffice to demonstrate why your reasons and your decision are wrong.

I also intend to point out falsehoods, inadvertent or otherwise, in your decision letter.

Take document 7.2 as an example.

Document 7.2 is a vacancy notice.

You claim that document 7.2 is subject to conditional exemptions under ss 47C, 47E and 47F.

Section 47C of the FOI Act provides:

A document is conditionally exempt if its disclosure under this Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:

(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth.

A vacancy notice is a public document. It is made available to the Australian community to advise members of the community that a vacancy exists in the Australian Public Service. A vacancy notification is ordinarily published in the Public Service Gazette and, as such, remains on the public record.

The mere fact that the vacancy notice, which is a document published for the Australian community to review, was provided to the APSC during the course of a PID investigation (which, according to an article published in the Australian on 29 March 2022, was probably inadequate because it is now the subject of an investigation under s 8 of the Ombudsman Act 1976 (a Category 4 investigation)) does not transform that document, or the content in that document, into deliberative matter. Your claim that a public document is conditionally exempt because it contains deliberative materials is nonsense. The vacancy notice does not contain deliberative matter. It does not contain an opinion, it does not contain advice. It does not contain a recommendation. It does not contain deliberative content (e.g. reasons or opinions about why things should be a certain way). Section 47C quite simply does not apply to a vacancy notice. Your reasons are nothing more than assertion that s 47C applies. Your claim that s 47C applies to the vacancy notice is wrong.

You also claim extracts of the Public Service Act contain deliberative matter and are thus conditionally exempt … Really? If you want to be turkey, don’t do it on the taxpayers’ time.

Section 47E of the FOI Act provides:

A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency;
(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

You have relied only on paragraphs (c) and (d) of section 47E in your reasons for decision. Accordingly, I will limit my criticisms to those grounds.

Are you suggesting that the release of extracts of the Public Service Act would, or could reasonably be expected to, have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency?

Are you suggesting that the release of a vacancy notice that was published for the Australian community would, or could reasonably be expected to, have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency?

Are you suggesting that the release of extracts of the Public Service Act would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency?

Are you suggesting that the release of a vacancy notice that was published for the Australian community would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency?

You claim that “under the PID scheme information collected during the course of a PID investigation is protected under section 65 of the PID Act.” You also claim that exemption under ss 47E(c) and (d) apply to the documents such as extracts of the Public Service Act or vacancy notices because “release of material contained within the documents under the FOI Act would likely undermine the protections provided under the PID scheme, and likely discourage current and former public officials to make PID disclosures or to involve themselves in PID investigations.” Yet on 25 March 2022, you provided Marcus with copies of the selection reports for Murray Belcher and Russell Trott that were provided to the APSC in the context of the very same PID investigation you are now invoking to deny access to extracts of legislation and a vacancy notice: see https://www.righttoknow.org.au/request/s.... Moreover, Patrick Hetherington, the First Assistant Commissioner, reviewed your decisions and removed redactions that you had made to the selection reports.

Section 65 of the PID Act provides:

(1) A person commits an offence if:
(a) the person has information (protected information) that the person obtained:
(i) in the course of conducting a disclosure investigation; or
(ii) in connection with the performance of a function, or the exercise of a power, by the person under this Act; and
(b) the person:
(i) discloses the information to another person; or
(ii) uses the information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Are you suggesting that on 25 March 2022 you deliberately disclosed or used information that had been obtained in the course of conducting a disclosure investigation? Are you admitting to deliberately having committed an offence that carries a penalty of 2 years imprisonment, 120 penalty units, or both? Are you suggesting that the First Assistant Commissioner deliberately committed an offence that carries a penalty of 2 years imprisonment, 120 penalty units, or both?

You are such a fool.

My FOI request was worded as follows:

According to articles published in the Australian on 8, 9 and 10 February, acting assistant commissioner Kate McMullan of the Australian Public Service Commission investigated recruitment practices of the Federal Court.

I would like access to all emails (including attachments to those emails) exchanged between Sia Lagos and Kate McMullan in relation to the investigation conducted by Ms McMullan.

All the world knows that the APSC was provided with the selection reports for Murray Belcher and Russell Trott in the context of Ms McMullan’s (abortive) PID investigation (abortive because it is now the subject of a Category 4 investigation by the Commonwealth Ombudsman) because the APSC published those reports, for all the world to see, in response to Marcus’ request. Those selection reports are about the selection of SES Band 1 National Judicial Registrars and District Registrars in Queensland and Western Australia. The problem is that Murray Belcher and Russell Trott were not, after being “promoted” to fill those SES vacancies, allocated SES classifications. They were screwed over. That is why a PID was allocated to the APSC by the Commonwealth Ombudsman in May 2020: see https://www.righttoknow.org.au/request/q....

Are you suggesting that no emails were exchanged between Ms McMullan and Ms Lagos in relation to Mr Belcher’s and Mr Trott’s selection reports, which provide that they were promoted to SES Band 1 positions, even though Justice Greenwood is reported as having accused Ms Lagos of obfuscation when she got involved in some plot orchestrated by Warwick Soden to tell Justice Greenwood that the Public Service Commissioner’s representative had threatened to veto Mr Belcher’s (and, it would seem, Mr Trott’s) promotions to the SES? Seems like something pretty serious not to exchange emails over, wouldn’t you say? It’s probably a reason why the PID investigation conducted by acting assistant commissioner Kate McMullan is being investigated by the Commonwealth Ombudsman. And yet you think that, on balance, the public interest is served by denying access to the documents requested?

Amateur hour is over Giorgina. You are out of your depth. Please pass this request for internal review to somebody capable of making a competent decision.

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...

Louise

FOI, Australian Public Service Commission

5 Attachments

OFFICIAL

Dear Applicant

 

Acknowledgement of Receipt

 

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.

 

Further Communication

 

In your email the tone of your communication is harassing and intimidating
towards APSC staff. We request you refrain from using such language in
your correspondence and that you communicate in a respectful manner to
enable the APSC to appropriately manage and respond to your FOI 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 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

Dear FOI Officer,

Feigning outrage? LOL.

I look forward to receiving the internal review decision.

Yours sincerely,

Louise

FOI, Australian Public Service Commission

6 Attachments

OFFICIAL

Dear Applicant

 

Please find attached a decision notice for your internal review request.

 

Kind 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

Dear Mr Spaccavento,

FYI - I have applied for IC review.

There is no way the Information Commissioner is going to uphold your decision in respect of "extracts of the Public Service Act" and a "vacancy notice". They are both public documents.

I doubt that your reasons will hold in the circumstances.

You should remember that the onus will now be on the APSC to convince the Information Commissioner not to make an adverse finding against the APSC. Good luck.

Yours sincerely,

Louise