Dear Commonwealth Ombudsman,

According to the 2021-2022 legal services expenditure report submitted to the Office of Legal Service Coordination (https://www.righttoknow.org.au/request/2...), the internal legal services expense for the Office of the Commonwealth Ombudsman for the 2021-2022 financial year was $785,388. That is an increase of $415,492 on the previous financial year, in which the internal legal services expense for the Office of the Commonwealth Ombudsman was $369,896.

One of the reasons for the increase in internal legal expenses between the 2020-2021 and 2021-2022 financial years is listed as “increasing workload particularly in Freedom of Information requests an OAIC review” in the 2021-2022 legal services expenditure report. I would like to know just what kind of FOI requests the Office of the Commonwealth Ombudsman is receiving that would justify a more than $400,000 increase in internal legal services expenditure in a single financial year.

Under the FOI Act I would like access to the original freedom of information requests received by the Office of the Commonwealth Ombudsman that are, as at 20 March 2023, the subjects of applications for Information Commissioner review (e.g. if 10 of the FOI requests that the Office of the Commonwealth Ombudsman has received are subjects of applications for IC review as at 20 March 2023, then please provide those 10 FOI requests).

Yours faithfully,

Stephen

Dear Commonwealth Ombudsman,

Please acknowledge receipt of this FOI request. The 14 day period for acknowledgement has passed.

Yours faithfully,

Stephen

Dear Commonwealth Ombudsman,

Do you at all intend to address my FOI request or do you intend to ignore it indefinitely?

Yours faithfully,

Stephen

Dear Commonwealth Ombudsman,

You don't honestly believe that you can ignore my FOI request forever, do you?

Yours faithfully,

Stephen

Dear Mr Lai,

RQ23/03465

Thank you for your email and for providing me with an opportunity to provide comments.

1. The application for an extension of time

My FOI request was submitted on 20 March 2023: https://www.righttoknow.org.au/request/f....

I requested an acknowledgement of receipt of my FOI request on 15 April 2023, which was ignored: https://www.righttoknow.org.au/request/f....

I sent further correspondence on 20 May 2023, which was ignored: https://www.righttoknow.org.au/request/f....

I then sent a further item of correspondence asking the Ombudsman if he honestly believed he could ignore my request forever on 5 June 2023: https://www.righttoknow.org.au/request/f.... That too was ignored.

According to you, the Ombudsman’s application for an extension of time was lodged on 13 June 2023.

The reasons provided for ignoring my FOI request, my request for acknowledgement of receipt of my FOI request and my repeated attempts to get the Ombudsman to do what he is lawfully required to do is set out as follows:

“Due to a high level of FOI requests, OAIC review requests, related litigation, staff leave and turnover we did not identify this FOI request until after it was deemed, following a recent auditing process.”

I am not an idiot. I can see, with my own eyes, that officials in the Office of the Commonwealth Ombudsman have corresponded with another access applicant, who made his request a full month after I submitted my FOI request: https://www.righttoknow.org.au/request/d.... The claim that the officials in the Office of the Commonwealth Ombudsman failed to identify my FOI request “until after it was deemed” is baloney.

2. Non-compliance with subsection 15(6) of the FOI Act

The official in the Office of the Commonwealth Ombudsman has stated that the “scope of the FOI request includes approximately 15 separate documents which has required and will require consultation with 15 distinct third-parties under s 27A of the FOI Act. As we need to consult with third-parties, the original due date of 19 April 2023 has been extended for 30 days, as per s 15(6) of the FOI Act, until 19 May 2023.”

Subsection 15(6) of the FOI Act provides that an agency must determine, IN WRITING, that the requirements in section 27A make it appropriate to extend the processing period referred in paragraph 15(5)(b) of the FOI Act, and inform the access applicant that the period has been so extended. Nobody in the Office of the Commonwealth Ombudsman has complied with subsection 15(6) of the FOI Act. Stating that “as we need to consult with third-parties, the original due date of 19 April 2023 has been extended for 30 days, as per s 15(6) of the FOI Act, until 19 May 2023” is a falsehood because subsection 15(6) has not been complied with.

The due date for the decision was 19 April 2023, and not 19 May 2023 as the official in the Office of the Commonwealth Ombudsman has claimed. A decision to refuse access to the requested documents was deemed, under the FOI Act, to have been personally made by the Commonwealth Ombudsman, Mr Iain Anderson, 19 April 2023.

3. Requested extension

The official in the Office of the Commonwealth Ombudsman has “under-quoted” the requested extension period. If the Office of the Commonwealth Ombudsman wants until 14 July 2023, then they would be asking for an extension of 86 days and not 56 days. The official in the Office of the Commonwealth Ombudsman who submitted the request is being disingenuous.

4. Applicant’s concerns

The official in the Office of the Commonwealth Ombudsman stated, in response to a request for information about the access applicant’s concerns, that “Applicant was concerned with the lack of response to their FOI request.” You think?

But then this disingenuous public servant has the gall to state “Our Office acknowledges that out communication with the applicant could have been better.” Better? There was no communication! It was non-existent! I might as well have been sending my correspondence to a brick in a bucket.

5. What work is required to finalise the request?

In response to “What work is required to finalise the request?” the official claims that:

“Our Office needs to finalise the third-party consultation requests regarding personal privacy and internal consultations regarding matter relating to potentially ongoing Public Interest Disclosures (PID) and other sensitive operational material. Once we have received our consultation responses from the various BODIES we will need to redact/process the documents and prepare decision letter to applicant.”

BODIES? According to the public servant who submitted this request for an extension of time, the “scope of the FOI request includes approximately 15 separate documents which has required and will require consultation with 15 distinct third-parties under s 27A of the FOI Act.” Section 27A applies to the personal information of NATURAL PERSONS. Why has the Office of the Commonwealth Ombudsman consulted with bodies and why is it of any relevance to wait on the responses of these bodies if the supposed ground for delay (of some three months) is that the decision maker in the Office of the Commonwealth Ombudsman should have consulted with NATURAL PERSONS? Sounds like more baloney to me.

Moreover, the mere fact that a person’s name appears on a document does not mean that consultations are required: see FOI Guidelines [3.77] and Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of Information) [2015] AATA 995 [49].

This public servant has made disingenuous claims about:

a) my concerns;

b) the OCO’s approach to handling my FOI request, including it’s sustained attempts to deliberately ignore my FOI request and handle the request of other access applicants who submitted requests after my own request was submitted;

c) the actual extension of time requested;

d) the parties to be consulted under section 27A of the FOI Act; and

e) the quality (or lack thereof) of engagement with me – there has been zero engagement.

Why should I, or anybody in the OAIC, trust what this public servant in the Office of the Commonwealth Ombudsman has said about the need to consult under section 27A of the FOI Act?

6. Ten hours to retrieve FOI requests

The official in the Office of the Commonwealth Ombudsman has stated:

“Our Office recently identified this request due to the reasons provided above on 22 May 2023. Since then we retrieved the documents within scope (which took approximately 10 hours), begun assessing the documents.”

How on Earth did it take officials in the Office of the Commonwealth Ombudsman ten hours to retrieve copies of FOI requests sent to their office, which would either be sitting in the FOI mailbox of the Office of the Commonwealth Ombudsman or would be correctly filed away in the Ombudsman’s IC review files (I assume, as I am entitled to assume, that the Office of the Commonwealth Ombudsman handles its record keeping in accordance with the National Archives’ Administrative Functions Disposal Authority and other information and record management systems that apply to Commonwealth agencies are required to maintain)?

Either the Office of the Commonwealth Ombudsman has a substandard record management system (in contravention of the Ombudsman’s duties under the Archives Act 1983 (Cth)) or the official who submitted the request for an extension of time is having a laugh (and a pork pie).

7. Extension of time

My FOI request was submitted on 20 March 2023

The Commonwealth Ombudsman has failed to acknowledge receipt of my request.

The Commonwealth Ombudsman has failed to acknowledge my correspondence.

The Commonwealth Ombudsman has dealt with requests it has received after my request while deliberately ignoring my FOI request and my repeated requests for a response to my request.

An official in the Office of the Commonwealth Ombudsman has failed to adequately acknowledge the piss poor handling of my concerns.

An official in the Office of the Commonwealth Ombudsman has misquoted the number of days requested for an extension by falsely claiming that subsection 15(6) has been lawfully enlivened.

An official in the Office of the Commonwealth Ombudsman has claimed that consultation requests have been sent to bodies, even though consultations under section 27A of the FOI Act only apply to natural persons.

Why would any reasonable person grant the Commonwealth Ombudsman an extension of time?

The Commonwealth Ombudsman has had about three months to deal with me according to law, knowing full well that I had applied for IC review on 20 April 2023, and chose not to. The Commonwealth Ombudsman’s conduct is wilfully contemptuous and, as such, unacceptable. This head of a Commonwealth Integrity Agency, and his officials, should not be given a free pass in the light of this demonstrated contempt for legality and candour.

I strongly oppose an extension of time being granted to the Ombudsman, and cannot see how any reasonable official in the Office of the Australian Information Commissioner could grant the Commonwealth Ombudsman and extension of time in the light of the criticisms set out in this email. No extension of time should be granted to the Ombudsman. Naturally, that means that the extension request until 14 July 2023 is opposed.

The Ombudsman should continue to process my FOI request and get that decision to me as soon as possible. Moreover, if the Ombudsman is fair dinkum about my FOI request being processed “as a matter of utmost urgency”, the Ombudsman should provide me with a timetable that he is working towards to get a lawful decision to me. The current IC review should remain on foot, and I should not be penalised by having my IC review request terminated only to have to apply for IC review again if the decision is unsatisfactory (given the disingenuousness with which officials in the Office of the Commonwealth Ombudsman have communicated with the OAIC in spite of the evidence that is publicly available, I have little faith that the decision will be an honest one). If a lawful and satisfactory decision is made, and suitable documents provided, I will withdraw my IC review request.

The appropriate course is, thus, to refuse the extension of time, notify the Ombudsman that he is required to process my FOI request, and notify the Commonwealth Ombudsman that the IC review remains on foot.

8. Final note about section 27A of the FOI Act

Before any decision is made to grant the Commonwealth Ombudsman an extension of time, please first determine that this EL1 Senior Legal Officer who is, apparently, overseeing the processing of my FOI request “as a matter of utmost urgency” has actually contacted NATURAL PERSONS (or their legal personal representatives) and not agencies or other bodies as part of their supposed decision making process. Nobody should grant an extension of time for the Ombudsman to do what is, ultimately, not permitted under section 27A of the FOI Act.

Yours sincerely,

Stephen

Dear Bernie,

Your decision has been received, with thanks.

Yours sincerely,

Stephen

David,

In your email of 13 June 2023 you noted:

"I sincerely apologise for the delay in responding to your request. Our team is currently experiencing a high volume of Freedom of Information requests as well as being affected by staff leave, which has significantly affected our capacity to process your request in a timely manner."

Today, Assistant Director Bernie Lai of the Office of the Australian Information Commissioner has decided to refuse the Commonwealth Ombudsman's request for an extension of time. In his reasons for decision, the Assistant Director noted:

"[13] On the information before the OAIC, I am not satisfied that the application to extend the processing period is justified, for the following reasons:

• The Ombudsman has advised that it failed to identify the FOI request until 22 May 2023 ‘[d]ue to a high level of FOI requests, OAIC review requests, related litigation, staff leave and turnover ... following a recent auditing process’, which appears to be the primary reason for its extension of time application. However, I am not satisfied that this reason based on the volume of the Ombudsman’s aggregated workload of meeting its obligations under the FOI Act justifies further time for the Ombudsman to deal with this particular FOI request."

Thus, the statement that you made on 13 June 2023 that the Commonwealth Ombudsman's "team is currently experiencing a high volume of Freedom of Information requests as well as being affected by staff leave, which has significantly affected our capacity to process your request in a timely manner" is a bogus claim. I doubt the "sincerity" of your apology.

When will I be provided with a decision?

Please do not advance any further bogus claims in your correspondence with me.

Stephen

David,

I remind you that Assistant Director Lai of the Office of the Australian Information Commissioner refused to provide the Commonwealth Ombudsman with an extension of time to process the FOI request that was made to you on 20 March 2023. In his decision notice he effectively accused officials in the Office of the Commonwealth Ombudsman of attempting to pull the wool over his eyes.

In his notice, he stated:

"the Ombudsman’s claim that it failed to identify the FOI request until 22 May 2023 appears tenuous because according to publicly available information:

o On 19 April 2023, the FOI applicant made a further FOI request to the OAIC, in its capacity as an agency subject to the FOI Act, for the same documents that he requested in their FOI request of 20 March 2023 to the Ombudsman.

o On 27 April 2023, the OAIC advised the FOI applicant that his FOI request of 19 April 2023 had been transferred to the Ombudsman under s 16(1)(b) of the FOI Act and that ‘[t]he OAIC has contacted the Ombudsman which has accepted the transfer of your request’
[emphasis added].

o In their FOI request of 19 April 2023 to the OAIC which had been transferred to the Ombudsman, the FOI applicant expressly referred to and cited their present FOI request of 20 March 2023 to the Ombudsman. Therefore, it appears that by or around 27 April 2023, the Ombudsman reasonably ought to have been aware that it had not responded to or actioned the FOI applicant’s FOI request of 20 March 2023."

So the claim that "due to a high level of FOI requests, OAIC review requests, related litigation, staff leave and turnover we did not identify this FOI request until [22 May 2023], following a recent auditing process", which was made in the application for an extension of time is a lie. It is a lie because, as the Assistant Director found, the Office of the Commonwealth Ombudsman had been contacted by the Office of the Australian Information Commissioner and, on 27 April 2023, accepted the transfer of a near identical FOI request. The Office of the Commonwealth Ombudsman knew well before 22 May 2023 that the FOI request that I made to Ombudsman on 20 March 2023 existed. Nonetheless, some knave in the Office of the Commonwealth Ombudsman thought it would be a good idea to record deceptive and misleading comments in an application for an extension of time to the Office of the Commonwealth Ombudsman.

Duplicitous public servants in a Commonwealth integrity agency? Who would have thought it?

Assistant Director Lai then noted:

"Even after it purportedly identified the FOI request on 22 May 2023, the Ombudsman failed to take any steps to acknowledge receipt of the FOI request as required under s 15(5)(a) of the FOI Act or to communicate with the FOI applicant."

Assistant Director Lai's decision notice is available online for you and you colleagues to read: https://www.righttoknow.org.au/request/f...

Why do officials in the Office of the Commonwealth Ombudsman think they are entitled to ignore my correspondence? Do you propose to acknowledge my correspondence? Why, also, do officials in the Office of the Commonwealth Ombudsman feel themselves entitled to ignore their continuing obligations to process my FOI request?

Are you going to take responsibility for the continuing failure of the Commonwealth Ombudsman or are you going to continue to pretend that nothing untoward is happening?

Stephen

David,

I find myself having to, again, send you an email.

I refer to my emails of 26 and 30 June 2023, as well as my FOI request of 20 March 2023, which still remains unprocessed.

When are you and your hard(ly)-working colleagues going to respond to the lawful FOI request that I submitted to the Office of the Commonwealth Ombudsman on 20 March 2023 (more than 110 days ago)?

Do I have to remind you of the contents of the FOI Guidelines? Paragraph 3.161 provides:

Where an access refusal decision is deemed to have been made before a substantive decision is made, the agency or minister continues to have an obligation to provide a statement of reasons on the FOI request. This obligation to provide a statement of reasons on the FOI request continues until any IC review of the deemed decision is finalised. The competing view — that a decision maker is functus officio if a deemed decision arises — would have the consequence that an applicant’s right of access under the FOI Act would be impeded through delay on an agency’s part and could only be revived by an application for IC review. This result would be contrary to the objectives and requirements of the FOI Act.

Stephen

David,

Still ignoring my FOI request?

You do realise that the OAIC will get to the IC review request at some point. What will you and your colleagues provide by way of explanation for ignoring my FOI request? Perhaps the same lame excuse that you provided in the past, which was that you failed to identify the correspondence ‘[d]ue to a high level of FOI requests, OAIC review requests, related litigation, staff leave and turnover ...’

Assistant Director Bernie Lai didn't buy that trash: https://www.righttoknow.org.au/request/f....

I wonder what liberties will be taken with the truth the next time.

Stephen

David,

It has been more than 140 days since I submitted my FOI request. I have still not received the Ombudsman's reasons for decision.

Despite making my FOI request on 20 March 2023, an official in the Office of the Commonwealth Ombudsman first contacted me on 13 June 2023, about 12 weeks after I first made my FOI request: https://www.righttoknow.org.au/request/f.... You were the that official.

In your email of 13 June 2023, you stated:

"I can confirm our Office continues to process your FOI request. However, I note the scope of your request contains approximately 35 documents which are administratively complex and require consultation with several Ombudsman teams as well as third-parties in relation to personal privacy concerns."

Have you or your colleagues even conducted the third party consultations?

Officials in the Office of the Commonwealth Ombudsman have statutory obligations by which they must comply. The law (the Freedom of Information Act 1982 (Cth)) has not been passed by the Parliament with a view to it being ignored by the Ombudsman and his staff.

Do you honestly believe that you and your colleagues are above the law? When will I receive the Ombudsman's reasons for decision David?

Ignoring me won't help you.

Stephen

Dear OAIC - FOI DR,

By way of update, after more than 140 days, officials in the Office of the Commonwealth Ombudsman have still failed to provide reasons for decision is response to my FOI request of 20 March 2023. This is despite Assistant Director Bernie Lai finding, on 26 June 2023, that:

"I am not satisfied that this reason based on the volume of the Ombudsman’s aggregated workload of meeting its obligations under the FOI Act justifies further time for the Ombudsman to deal with this particular FOI request."

Mr Lai's reasons for refusing the Commonwealth Ombudsman an extension of time can be found here: https://www.righttoknow.org.au/request/f....

Despite repeated requests for updates, staff members in the Office of the Commonwealth Ombudsman continue to ignore my correspondence. Their conduct is beyond unprofessional; it's unlawful.

Yours sincerely,

Stephen

David,

So you've finally decided to get in contact with me. And all it took was for the Office of the Australian Information Commissioner to commence a process of preliminary inquiry for you to do so. How encouraging that an official in a Commonwealth integrity agency will only comply with his legal obligations because the agency he is part of is subject to a preliminary inquiry by the oversight body.

I asked you whether you or your colleagues have even conducted the third party consultations that you claimed, on 13 June 2023, were holding up the reasons for decision?

So David, have you or your colleagues conducted the third party consultations that you claimed, on 13 June 2023, were holding up the reasons for decision?

Stephen

David,

Today marks 150 days since I made an application for access to documents under the FOI Act on 20 March 2023.

The Ombudsman has refused to provide reasons for decision and he staff members have steadfastly ignored my correspondence. Some Commonwealth integrity agency. You lot preach a big game, but when it comes to complying with the basics of the FOI Act, you knowingly choose to trash the laws of Australia.

Once again, I reproduce paragraph paragraph 3.161 of the FOI Guidelines, wherein the following is set out:

"Where an access refusal decision is deemed to have been made before a substantive decision is made, the agency or minister continues to have an obligation to provide a statement of reasons on the FOI request. This obligation to provide a statement of reasons on the FOI request continues until any IC review of the deemed decision is finalised. The competing view — that a decision maker is functus officio if a deemed decision arises — would have the consequence that an applicant’s right of access under the FOI Act would be impeded through delay on an agency’s part and could only be revived by an application for IC review. This result would be contrary to the objectives and requirements of the FOI Act."

Having consistently ignored my correspondence for more than four months, I again wrote to you on 9 August 2023 and, as usual, you have ignored my correspondence. Ignoring me will not help you. All you’re doing is undermining whatever credibility the Office of the Commonwealth Ombudsman has.

The Ombudsman applied for an extension of time to process my FOI request. On 26 June 2023, Bernie Lai, an Assistant Director in the OAIC, called out the Ombudsman’s staff for advancing lies in the application for an extension of time: https://www.righttoknow.org.au/request/f....

In the application for an extension of time submitted to the OAIC (https://www.righttoknow.org.au/request/f... – Attachment A), the Ombudsman stated the following in response to to the question “what work is required to finalise the request?”:

“Our office needs to finalise the third-party consultation requests regarding personal privacy and internal consultations regarding matter relating to potentially ongoing Public Interest Disclosure (PID) and other sensitive operational material.”

The Ombudsman also claimed the following in the application for an extension of time:

“The applicant has requested 29 separate documents – original FOI requests we have received that are currently subject to IC review. These documents contain the personal information of approximately 15-17 parties (not including staff details) which requires consultation with each party, as well as potentially containing information relating to ongoing PID investigations and litigation.”

Finally, the Ombudsman claimed:

“This matter is currently being prepared by a Legal Officer, overseen by an EL1 Senior Legal Officer, and is being treated as a matter of utmost urgency.”

David – have you or your colleagues even commenced ALL of the consultation processes in respect of the personal information you claim is set out in these FOI requests that are the subject of IC review?

David – have you or your colleagues completed ALL of the consultation processes, with the 15 – 17 people (you are obviously incapable of calculating an exact number of persons – are 16.6666666666 people to be consulted?) in respect of the personal information you claim is set out in these FOI requests that are the subject of IC review?

David – it has been 150 days since I submitted my FOI request. How urgently could you and your colleagues be handling this FOI request if, after 150 days, you have nothing to show for the “utmost urgency” with which you and your colleagues have attended to the task?

David – the Ombudsman claims that the FOI requests potentially contains information relating to ongoing PID investigations. Either the investigations are ongoing or they are not. Either there is information of a prohibited kind recorded in the FOI requests or there is not. FOI requests do not contain potential information about potentially ongoing PID investigations. What is the meaning of the nonsense recorded in the application for an extension of time?

David – how hard is it to process an FOI request in respect of 29 FOI requests?

David – when will I be provided with reasons for decision in respect of the 29 FOI requests that you have identified?

David – when will you stop ignoring my correspondence?

Yours sincerely,

Stephen

David,

The Ombudsman has failed to comply with his statutory obligations.

His staff members have lied to the OAIC in an attempt to extract more time to process the request, which was rejected because the relevant official, Bernie Lai, demonstrated the falsehoods advanced in the application for an extension of time.

You have failed to address my FOI request and you fail to address reasonable questions about my FOI request.

I asked you:

i. have you or your colleagues even commenced ALL of the consultation processes in respect of the personal information you claim is set out in these FOI requests that are the subject of IC review?

ii. have you or your colleagues completed ALL of the consultation processes, with the 15 – 17 people (you are obviously incapable of calculating an exact number of persons – are 16.6666666666 people to be consulted?) in respect of the personal information you claim is set out in these FOI requests that are the subject of IC review?

Stop shirking my questions and provide an honest response.

Yours sincerely,

Stephen

David,

Another week passes with you ignoring my correspondence.

I refer to my correspondence of 9 August 2023, 17 August 2023 and 18 August 2023.

Today is 25 August 2023.

On 13 June 2023, the Ombudsman applied for an extension of time to process my FOI request: https://www.righttoknow.org.au/request/f.... On 26 June 2023, Bernie Lai, an Assistant Director in the OAIC, called out the Ombudsman’s staff for advancing lies in the application for an extension of time: https://www.righttoknow.org.au/request/f...

In the application for an extension of time submitted to the OAIC (https://www.righttoknow.org.au/request/f... – Attachment A), the Ombudsman stated the following in response to to the question “what work is required to finalise the request?”:

“Our office needs to finalise the third-party consultation requests regarding personal privacy and internal consultations regarding matter relating to potentially ongoing Public Interest Disclosure (PID) and other sensitive operational material.”

The Ombudsman also claimed the following in the application for an extension of time:

“The applicant has requested 29 separate documents – original FOI requests we have received that are currently subject to IC review. These documents contain the personal information of approximately 15-17 parties (not including staff details) which requires consultation with each party, as well as potentially containing information relating to ongoing PID investigations and litigation.”

I have asked, and I again ask, you:

i. have you or your colleagues even commenced ALL of the consultation processes in respect of the personal information you claim is set out in these FOI requests that are the subject of IC review?

ii. have you or your colleagues completed ALL of the consultation processes, with the 15 – 17 people (you are obviously incapable of calculating an exact number of persons – are 16.6666666666 people to be consulted?) in respect of the personal information you claim is set out in these FOI requests that are the subject of IC review?

You and your colleagues have failed to address my FOI request and you still fail to address reasonable questions about my FOI request.

What of these consultations processes in respect of personal information? I hope you or your colleagues didn't lie about these consultation processes as well.

You are a legal officer in a Commonwealth integrity agency. Shouldn't you be embarrassed by your conduct? Stop ignoring my correspondence David.

Stephen

David,

Yet another week passes with you ignoring my correspondence.

I refer to my correspondence of 9 August 2023, 17 August 2023, 18 August 2023 and 25 August 2023.

Today is 1 September 2023.

On 13 June 2023, the Ombudsman applied for an extension of time to process my FOI request: https://www.righttoknow.org.au/request/f....

On 26 June 2023, Bernie Lai, an Assistant Director in the OAIC, called out the Ombudsman’s staff for advancing lies in the application for an extension of time: https://www.righttoknow.org.au/request/f....

In the application for an extension of time submitted to the OAIC (https://www.righttoknow.org.au/request/f... – Attachment A), the Ombudsman stated the following in response to to the question “what work is required to finalise the request?”:

“Our office needs to finalise the third-party consultation requests regarding personal privacy and internal consultations regarding matter relating to potentially ongoing Public Interest Disclosure (PID) and other sensitive operational material.”

The Ombudsman also claimed the following in the application for an extension of time:

“The applicant has requested 29 separate documents – original FOI requests we have received that are currently subject to IC review. These documents contain the personal information of approximately 15-17 parties (not including staff details) which requires consultation with each party, as well as potentially containing information relating to ongoing PID investigations and litigation.”

I have asked, and I again ask, you:

i. have you or your colleagues even commenced ALL of the consultation processes in respect of the personal information you claim is set out in these FOI requests that are the subject of IC review?

ii. have you or your colleagues completed ALL of the consultation processes, with the 15 – 17 people (you are obviously incapable of calculating an exact number of persons – are 16.6666666666 people to be consulted?) in respect of the personal information you claim is set out in these FOI requests that are the subject of IC review?

You and your colleagues have failed to address my FOI request and you still fail to address reasonable questions about my FOI request.

What of these consultations processes in respect of personal information, David? Why do you keep ignoring my correspondence David? Is anybody in the legal team of the Office of the Commonwealth Ombudsman going to take ownership? Is there anybody to whom you report, David, that I can address my concerns about your contempt for the law?

I have been waiting 165 for reasons for decision. 165 days and counting.

Yours sincerely,

Stephen

Dear Georgia,

MR23/00477

Please proceed with the IC review application for the reasons outlined.

1. THE BACKGROUND

On 20 March 2023, I made submitted an FOI request to the Commonwealth Ombudsman: https://www.righttoknow.org.au/request/f....

My request was not acknowledged and the Ombudsman did not provide reasons for decision. I applied for IC review of the Ombudsman’s deemed refusal decision on 20 April 2023.

I sent correspondence to the Ombudsman in relation to my FOI request on:

a) 15 April 2023: https://www.righttoknow.org.au/request/f...,
b) 20 May 2023: https://www.righttoknow.org.au/request/f...,
c) 5 June 2023: https://www.righttoknow.org.au/request/f....

Each request for acknowledgement was ignored by the Ombudsman’s staff.

On 13 June 2023, Bernie Lai, an assistant director in the Office of the Australian Information Commissioner, wrote to me asking for submissions in respect of an application for an extension of time: https://www.righttoknow.org.au/request/f....

The Ombudsman claimed the following in his application for an extension of time:

“Our office needs to finalise third-party consultation request regarding personal privacy and internal consultations regarding matter relating to potentially ongoing Public Interest Disclosures and other sensitive operational material. Once we have received our consultation responses from the various bodies we will need to redact/process the documents and prepare decision letter to applicant.”

The Ombudsman also claimed:

“Our office recently identified this request due to the reasons provided above on 22 May 2023. Since then, we retrieved the documents within scope, begun assessing the documents.”

See: https://www.righttoknow.org.au/request/1....

On 13 June 2023, I provided my submissions: https://www.righttoknow.org.au/request/f....

On 26 June 2023, Bernie Lai rendered his decision to refuse the extension of time application: https://www.righttoknow.org.au/request/1....

Bernie Lai was unimpressed with the Ombudsman's reasons. He noted:

"[13] On the information before the OAIC, I am not satisfied that the application to extend the processing period is justified, for the following reasons:

• The Ombudsman has advised that it failed to identify the FOI request until 22 May 2023 ‘[d]ue to a high level of FOI requests, OAIC review requests, related litigation, staff leave and turnover ... following a recent auditing process’, which appears to be the primary reason for its extension of time application. However, I am not satisfied that this reason based on the volume of the Ombudsman’s aggregated workload of meeting its obligations under the FOI Act justifies further time for the Ombudsman to deal with this particular FOI request."

Bernie Lai also noted:

"the Ombudsman’s claim that it failed to identify the FOI request until 22 May 2023 appears tenuous because according to publicly available information:

o On 19 April 2023, the FOI applicant made a further FOI request to the OAIC, in its capacity as an agency subject to the FOI Act, for the same documents that he requested in their FOI request of 20 March 2023 to the Ombudsman.

o On 27 April 2023, the OAIC advised the FOI applicant that his FOI request of 19 April 2023 had been transferred to the Ombudsman under s 16(1)(b) of the FOI Act and that ‘[t]he OAIC has contacted the Ombudsman which has accepted the transfer of your request’
[emphasis added].

o In their FOI request of 19 April 2023 to the OAIC which had been transferred to the Ombudsman, the FOI applicant expressly referred to and cited their present FOI request of 20 March 2023 to the Ombudsman. Therefore, it appears that by or around 27 April 2023, the Ombudsman reasonably ought to have been aware that it had not responded to or actioned the FOI applicant’s FOI request of 20 March 2023."

Bernie Lai refused the extension of time application because he was convinced that the Ombudsman’s staff members were lying about having just “identified this request … on 22 May 2023.”

2. TRACK RECORD OF OMBUDSMAN’S STAFF MEMBER WHEN IT COMES TO THE TRUTH

Clearly some of the Ombudsman’s staff members are liars, and will lie to get what they want.

They have lied about first identifying my request on 22 May 2023, when the truth is that they would have been aware of it in at least in April 2023: https://www.righttoknow.org.au/request/f....

The Ombudsman’s staff also claimed that the chief impediment for processing my request was that they had to consult third parties. In the application for an extension of time, the following is noted:

“The applicant has requested 29 separate documents … These documents contain the personal information of 15-17 third parties which requires consultation with each party …”: https://www.righttoknow.org.au/request/1....

In his reasons for decision, which David Yalpi provided on 7 September 2023, more than 5.5 months after I made my FOI request, David Yalpi stated:

“In addition to the exceptions noted above, where the complaint or public interest disclosure referred to in an FOI application is related to an individual, disclosure of that information would also constitute an unreasonable disclosure of personal information, though I note for completeness that those individuals have not been consulted as ultimately I have decided to not release the information.”

The Ombudsman’s staff, who based their application for an extension of time on the ground that they had to finalise third party consultations, did not even consult third parties. In other words, they lied again to extract an extension of time.

Why should I trust anything that David Yalpi has written in his reasons for decision?

3. ACCESS REFUSAL

David Yalpi has refused to grant access to 20 documents: Decision, para 20: https://www.righttoknow.org.au/request/1....

4. ACCESS REFUSAL – PID

According to Mr Yalpi, “all FOI applications that refer to specific purported Public Interest Disclosures are exempt from production pursuant to s 47E(d) of the FOI Act”: Decision, para 21: https://www.righttoknow.org.au/request/1....

If that’s the case, why did Mr Yalpi grant access to an FOI request that refers to a public interest disclosure? See: https://www.righttoknow.org.au/request/1..., pages 12-13.

On pages 12-13 of the “Documents for release”, there is an FOI request in respect of an article in The Australian that reported about a public interest disclosure conducted by the APSC.

The fact that a PID is referred to in pages 12-13 of the “Documents for release”, and what that PID relates to, is public knowledge.

The APSC has, in documents published on Right to Know, acknowledged that Kate McMullan conducted a public interest disclosure investigation in respect of recruitment in the Federal Court: https://www.righttoknow.org.au/request/9....

The APSC has acknowledged that the Ombudsman allocated the PID to the APSC on 11 May 2020: https://www.righttoknow.org.au/request/9....

The Commonwealth Ombudsman’s order of an investigation into Kate McMullan’s handling of public interest disclosure has been been published on Right to Know: https://www.righttoknow.org.au/request/9....

David Yalpi’s statement that “all FOI applications that refer to specific purported Public Interest Disclosures are exempt from production pursuant to s 47E(d) of the FOI Act” is false. He has contradicted his own claim by publishing an FOI request that does refer to a specific public interest disclosure. This guy’s a nitwit.

But Mr Yalpi’s silliness doesn’t end there.

According to Mr Yalpi: Decision, para 24: https://www.righttoknow.org.au/request/1...

“Central to the Public Interest Disclosure scheme is the protection of those who make disclosures, as well as secrecy. Disclosure of even the purported existence of a PID Investigation, where the existence of that investigation is not well known, could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of investigations in the future. Where information may indicate a PID was made, the release of any information increases the risk of reprisal for disclosers and other officials. Public detriment will arise if the Office is compromised in our ability to obtain confidential information in future PID or Ombudsman Act investigations.”

If it is true that “disclosure of even the purported existence of a PID Investigation could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of investigations in the future”, why has the Office of the Commonwealth Ombudsman, in its Annual Reports to the Parliament, disclosed:

a) the number of public interest disclosure received by each Government agency,
b) the kinds of disclosable conduct to which the PIDs received in the financial year related to,
c) the number of PID investigation conducted during the financial year,
d) the actions taken during the financial year in response to PID report recommendations?

For example, in the 2021-2022 financial year, the ATO (see: www.transparency.gov.au/annual-reports/o...

a) received 8 PIDS,
b) had PIDs that set out the following kinds of disclosable conduct – Maladministration (2), Wastage of Public Money (2), Abuse of office (2), Conduct that may result in disciplinary action (5),
c) investigated 4 PIDS,
d) referred PIDs to the General Counsel with a notification prepared for the Law Society of NSW.

This kind of details has been reported in respect of dozens of Government agencies.

But according to David Yalpi, legal officer in the Office of the Commonwealth Ombudsman, “disclosure of even the PURPORTED EXISTENCE of a PID Investigation [in the documents requested – FOI requests made to the Ombudsman], could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of investigations in the future.”
According to David Yalpi “public detriment WILL ARISE” if the FOI request documents that I requested access to are published because “disclosure of even the PURPORTED EXISTENCE of a PID Investigation, where the existence of that investigation is not well known, could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of investigations in the future.”

If what David Yalpi has stated is true, why does the Ombudsman publish information setting out the details of PIDs made to each Government agency in its Annual reports each financial year? If “public detriment WILL ARISE” if the FOI request documents that I requested access to are published because “disclosure of even the PURPORTED EXISTENCE of a PID Investigation … could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of investigations in the future”, why did David Yalpi grant access to an FOI request which refers to a PID that was investigated by the APSC, and which is the subject of an Ombudsman Investigation?

The PURPORTED existence of PIDs? It’s all a big state secret. Nobody must know. The heavens will implode. The rivers will run red with blood. The Commonwealth will cease to exist.

What a load of BS. Like I said, this guy is a nitwit.

5. ACCESS REFUSAL – OMBUDSMAN INVESTIGATIONS

According to Mr Yalpi, “[t]hose documents that reveal complaints made to this Office and their investigation are exempt in full from release under s 47E(d) of the FOI Act”: Decision, para 27: https://www.righttoknow.org.au/request/1....

In support of his claim he states, at paragraph 29 (https://www.righttoknow.org.au/request/1...

“As noted in Australian Broadcasting Corporation and Commonwealth Ombudsman [2012] AICmr11 (26 April 2012) (‘ABC’) at [33]:

the Ombudsman Act establishes a framework within which the Ombudsman’s investigations are conducted in private, and information disclosed or obtained under the Act is treated confidentially...Disclosure, under the FOI Act, of information provided to the Ombudsman by complainants in such circumstances would affect the willingness of people to make complaints to the Ombudsman in the future. That would have a substantial adverse effect on the proper and efficient conduct of the Ombudsman’s operations.”

What has the cited authority, Australian Broadcasting Corporation and Commonwealth Ombudsman [2012] AICmr11, have to do with my FOI request?

I made an FOI request for the original freedom of information requests received by the Office of the Commonwealth Ombudsman that are, as at 20 March 2023, the subjects of applications for Information Commissioner review.

My FOI request was made under the Freedom of Information Act 1982 (Cth).

Every FOI request is made under the Freedom of Information Act 1982 (Cth). Nobody has ever made an FOI request under the Ombudsman Act 1976 (Cth). The documents that I requested access to are not document “disclosed or obtained under the [Ombudsman] Act.”

The disclosure of original FOI requests made to the Office of the Commonwealth Ombudsman under the FOI Act is not, and has never been, a disclosure “of information provided to the Ombudsman by complainants” under the Ombudsman Act.

Documents containing FOI requests made to the Office of the Commonwealth Ombudsman are documents that contain content FOR documents in the possession of the Commonwealth Ombudsman. They are not documents by which “information is DISCLOSED or OBTAINED under the [OMBUDSMAN] Act.”

Australian Broadcasting Corporation and Commonwealth Ombudsman [2012] AICmr11 has absolutely no relevance to instant case.

But according to David Yalpi, Australian Broadcasting Corporation and Commonwealth Ombudsman [2012] AICmr11 is authority for his claim that granting access to “[t]hose documents that reveal complaints made to this Office and their investigation are exempt in full from release under s 47E(d) of the FOI Act.”

Here is David Yalpi’s “logic” (as best as any person can tease out a shred of rationality in it) laid bare:

a) Australian Broadcasting Corporation and Commonwealth Ombudsman [2012] AICmr11 provides that “Ombudsman’s investigations are conducted in private, and information disclosed or obtained under the Act is treated confidentially...Disclosure, under the FOI Act, of information provided to the Ombudsman by complainants in such circumstances would affect the willingness of people to make complaints to the Ombudsman in the future”,
b) FOI request were made to the Office of the Commonwealth Ombudsman under the FOI Act (and not the Ombudsman Act).
c) the FOI requests are requests for documents in the possession of the Office of the Commonwealth Ombudsman,
d) the access applicant has requested access, under the FOI Act, to 20 FOI requests that are the subject of IC review,
e) not one of those 20 FOI request documents is a document provided to the Commonwealth Ombudsman under the Ombudsman Act 1976,
f) not one of those 20 FOI request documents is information disclosed, or obtained, under the Ombudsman Act 1976 (Cth) for the purposes of an Ombudsman investigation.

Therefore:

g) all of those 20 documents “are exempt in full under s 47E(d) of the FOI Act” because they “reveal complaints made to this Office” – so sayeth Australian Broadcasting Corporation and Commonwealth Ombudsman [2012] AICmr11, and
h) it is against the public interest to grant access to the FOI requests that you have requested.

The reasoning is obviously demented.

How a “legal” officer came up with this trash is beyond me. How a public official, who is a “legal” officer in Commonwealth integrity agency, could prepare this trash as reasons for decision should be cause for alarm.

6. REQUEST TO OAIC

I have demonstrated that the officials in the Office of the Commonwealth Ombudsman are liars and have been caught in their lies by an official in the OAIC.

I have demonstrated that the decision maker, David Yalpi, is at best incompetent. His reasons are trash, and it took him 5.5 months to come up with that trash.

I would like somebody in the OAIC to review the entire decision, including the so called partial access grant decision. Since officials in the Office of the Commonwealth Ombudsman are liars, and Mr Yalpi’s reasons are hopelessly incompetent, I do not trust David Yalpi’s assessment and application of the conditional exemption grounds and public interest test in respect of the partial access grant decision. It should go without saying that his access refusal decision must be reviewed in its entirety because, for all the reasons set out above, it is hopelessly incompetent; it’s trash.

Please conduct a full review of David Yalpi’s “reasons” for decision.

Yours sincerely,

Stephen