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Hadgkiss and Lloyd

D Watson made this Freedom of Information request to Australian Public Service Commission

This request has an unknown status. We're waiting for D Watson to read recent responses and update the status.

From: D Watson

Delivered

Dear Australian Public Service Commission,

I refer to the FOI request made of the APSC as set out here: https://www.righttoknow.org.au/request/h...

Under the FOI Act, I seek access to similar information. Specifically, I seek copies of email correspondence between Mr John Lloyd (in his capacity as Public Service Commissioner or otherwise), and Mr Nigel Hadgkiss (in his capacity as Australian Building and Construction Commissioner or otherwise), from 1 January 2015, onwards.

I am willing to agree to the personal information of any third party individuals or information relating to any third party organisations to be redacted from any relevant document.

Further, I am willing to exclude from the scope of my request:

- any document attached to any relevant email; and
- all but the last email in email chains/threads (but only on the basis that the preceding emails in those email chains will be included in the last email of those email chains).

It is relevant to note that on 29 September 207, the Federal Court found that Mr Nigel Hadgkiss, in his capacity as Director of the Fair Work Building Inspectorate, recklessly contravened the Fair Work Act 2009, being the same legislation that Mr Hadgkiss was paid significant taxpayer funds to uphold, administer and enforce. It is notable that Mr Hadgkiss’ illegal conduct took place in December 2013, just two months after he was appointed to his statutory position by Senator Eric Abetz and that Mr Hadgkiss' colleagues took no action to report or address Mr Hadgkiss' illegal conduct.

It is also relevant to note that on 7 August 2018, the Merit Protection Commissioner found, pursuant to paragraph 50(1)(b) of the Public Service Act 1999, that Mr John Lloyd acted illegally in public office by contravening subsection 13(11) of the Public Service Act 1999, being the same legislation that Mr Lloyd was paid approximately $700,000 of public funds annually to uphold, administer and enforce. It is notable that Mr Lloyd’s illegal conduct took place in April 2015, just four months after he was appointed to his statutory position by Senator Eric Abetz and that Mr Lloyd's colleagues took no action to report or address Mr Lloyd's illegal conduct.

I note that the APSC has, in its processing of the FOI request here: https://www.righttoknow.org.au/request/h... already searched for, and identified, 57 documents relevant to my request totalling 132 pages. The further narrowing of the scope of my request (by excluding email attachments and duplicate documents) will have the effect of substantially reducing the document and page numbers concerned. I further note that, as advised by the APSC’ FOI Coordinator (see the APSC’s correspondence dated 9 August 2018 here: https://www.righttoknow.org.au/request/h..., the APSC has already undertaken third party consultation in respect of the documents at issue.

There is a clearly a wide public interest in the content of communications between two former public servants who:
- are close personal friends;
- share the same political and ideological affiliations; and
- have both been independently found to have acted illegally in public office including by contravening the very same laws (only a short period after they were appointed to their positions) that they were paid huge publicly-funded salaries to uphold, administer and enforce – thereby disgracing themselves, and in the process, substantively damaging the integrity of the entirety of the Australian Public Service.

The wide public interest in the documents the subject of my request abounds not least because those communications will, having regard to the character of these persons and their apparent willingness to engage in illegal conduct, invariably detail further misconduct engaged in by these individuals while in public office and while in receipt of large sums of public monies. These documents will also detail the level of improper involvement Mr Lloyd had in the operational management of an independent Government agency that he was not working for. Accordingly, the release of the documents the subject of my request is overwhelmingly likely to reveal or substantiate that Mr Lloyd and Mr Hadgkiss have further engaged in improper or unlawful conduct while in public office.

Thanks

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From: FOI
Australian Public Service Commission

UNCLASSIFIED

FOI Reference C18/1974

Good afternoon D Watson,

 

Acknowledgement of FOI request

 

The Australian Public Service Commission (the Commission) acknowledges
receipt of your request dated 13 October 2018, under the Freedom of
Information Act 1982 (Cth) (FOI Act), seeking access to the following
documents:

 

‘…I seek copies of email correspondence between Mr John Lloyd (in his
capacity as Public Service Commissioner or otherwise), and Mr Nigel
Hadgkiss (in his capacity as Australian Building and Construction
Commissioner or otherwise), from 1 January 2015, onwards.

 

I am willing to agree to the personal information of any third party
individuals or information relating to any third party organisations to be
redacted from any relevant document.

 

Further, I am willing to exclude from the scope of my request:

-           any document attached to any relevant email; and

-           all but the last email in email chains/threads (but only on
the basis that the preceding emails in those email chains will be included
in the last email of those email chains)…’

 

The statutory timeframe for responding to your request under the FOI Act,
is 30 days from the date of receipt. This timeframe may be extended in
certain circumstances, and we will advise you if such circumstances arise.
An extension to the timeframe may occur if there is a need to conduct
formal consultation with affected third parties. Such consultation may
extend the processing time by an additional 30 days, in accordance with
sections 27 and 27A [Consultation – business documents and personal
privacy] of the FOI Act.

 

Section 29 of the FOI Act provides that agencies may apply a processing
charge for access to documents which do not concern your personal
information. I will write to you and inform you if it is decided that a
processing charge will apply.

 

Section 22 of the FOI Act, provides that agencies may redact certain
material from documents, if it is deemed that material is irrelevant or
outside the scope of your request.  The Commission’s policy is to redact
the personal contact details of Commission or APSC officers, who are
employed below Senior Executive Officers (SES) level, such as mobile
telephone numbers and signatures. 

 

Should you have any questions relating to your request, please do not
hesitate to contact our office via email to [1][email address]

 

Kind regards,

 

 

FOI Coordinator

Legal Services

 

Australian Public Service Commission

Treasury Building, Parkes Place West, Parkes ACT 2600

GPO Box 3176, Canberra ACT 2601

Email: [email address]

 

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Link to this

From: FOI
Australian Public Service Commission


Attachment C18 1974 Charge decision 24 Oct 18.pdf
1.9M Download View as HTML


UNCLASSIFIED
FOI Reference: C18/1974
Good afternoon D Watson,

Please find attached correspondence from the Australian Public Service Commission, in relation to your FOI request.

Regards
Karen

FOI Coordinator

Australian Public Service Commission
Level 4, B Block, Treasury Building
Parkes Place West, Parkes ACT 2600
P: 02 6202 3500    l    E: [email address]

Important: This e-mail is for the use of the intended recipients only and may contain information that is confidential, commercially valuable and/or subject to legal privilege. If you are not the intended recipient you are notified that any review, re-transmission,
disclosure, dissemination or other use of, or taking any action in reliance upon this information is prohibited. If you have received this e-mail in error, please notify the sender immediately and delete all electronic and hard copies of this transmission together with any attachments.

Important: This email remains the property of the Commonwealth and is subject to the jurisdiction of section 70 of the Crimes Act 1914. It may contain confidential or legally privileged information. If you think it was sent to you by mistake, please delete all copies and advise the sender.

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Verity Pane left an annotation ()

A charges levy of $202.94 for 44 documents totalling 84 pages seems rather onerous and excessive (and that is the levy after the agency reduced its estimate by 20%).

As this is not a charges notice, but a preliminary estimate (therefore not decided yet), would be worth asking the delegate to provide some further information, as I note the charges levy estimated was giving in summary form only, with no details of hours or rates involved.

From my reading, it seems that for the limited number of documents, the decision making time charge is excessive, but this may be due to the APSC not approaching the FOI from the lowest cost practicable (such as charging for a very senior reviewer, aka SES level, when an APS6 or EL1 reviewer is all that would be needed).

At this stage it would be worth discussing with the APSC, including their assessment there is only limited public interest (considering the amount of press around his early resignation from office, and lately his appearances before inquiries and the reporting of the Merit Protection Commissioner’s report finding Mr Lloyd did indeed breach the APS Public Service Act this seems a stretch).

If they they go on to issue this as a charges notice regardless, you’d have to make a formal internal review or IC review request, which would then stop the s 15(5)(b) clock.

All the best,

Verity

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From: D Watson

Delivered

Dear Ms Crosthwaite

I am responding to your letter of 24 October 2018 advising me that you have decided that I am liable to pay a charge of $202.94 for the processing of my FOI request dated 13 October 2018.

I contend that charge should not be imposed because the giving of the documents in question is in the general public interest or in the interest of a substantial section of the public and the charge has been wrongly assessed. My submissions follow.

The documents are in the public interest or in the interest of a substantial section of the public.

(1) As indicated in my request:

“On 29 September 2017, the Federal Court found that Mr Nigel Hadgkiss, in his capacity as Director of the Fair Work Building Inspectorate, recklessly contravened the Fair Work Act 2009, being the same legislation that Mr Hadgkiss was paid significant taxpayer funds to uphold, administer and enforce. It is notable that Mr Hadgkiss’ illegal conduct took place in December 2013, just two months after he was appointed to his statutory position by Senator Eric Abetz and that Mr Hadgkiss' colleagues took no action to report or address Mr Hadgkiss' illegal conduct.

It is also relevant to note that on 7 August 2018, the Merit Protection Commissioner found, pursuant to paragraph 50(1)(b) of the Public Service Act 1999, that Mr John Lloyd acted illegally in public office by contravening subsection 13(11) of the Public Service Act 1999, being the same legislation that Mr Lloyd was paid approximately $700,000 of public funds annually to uphold, administer and enforce. It is notable that Mr Lloyd’s illegal conduct took place in April 2015, just four months after he was appointed to his statutory position by Senator Eric Abetz and that Mr Lloyd's colleagues took no action to report or address Mr Lloyd's illegal conduct.”

(2) It is a very rare occurrence for a Commonwealth statutory officer to be formally found to have acted illegally in public office, let alone for breaking the very same laws they were tasked with administering. Yet those are the independent findings made in respect of Mr Nigel Hadgkiss (by the Federal Court) and Mr John Lloyd (by the Merit Protection Commissioner), within a year of each other.

(3) It is relevant that in the case of the illegal activities engaged in by Nigel Hadgkiss and John Lloyd, that the executive groups at Fair Work/ABCC and the APSC, despite being privy to the illegal conduct engaged in by Mr Hadgkiss and Mr Lloyd, took no action to address or report that illegal conduct – notwithstanding the clear legal obligation imposed on those executives by paragraph 1.3(f) of the Australian Public Service Commissioner's Directions 2013 and subsequently of paragraph 14(f) of the Australian Public Service Commissioner's Directions 2016 (which revoked and replaced the 2013 Directions)). Because those executives decided to take no action to report the illegal conduct of those two statutory appointees, it was left to third party members of the public to identify and report the illegal conduct engaged in by Mr Hadgkiss and Mr Lloyd.

(4) Mr Hadgkiss’ illegal conduct took place just two months after he was appointed to his role and Mr Lloyd’s illegal conduct took place just four months after his appointment. Because the illegal conduct engaged in by these individuals was only actioned years after it took place, Mr Hadgkiss received approximately $1.5 million in public funds (as salary) after he engaged in the illegal conduct that ultimately forced his resignation, and Mr Lloyd received over $2 million in public funds (as salary) after he engaged in the illegal conduct that ultimately forced his resignation.

(5) Mr Hadgkiss and Mr Lloyd are political appointees who, for whatever reason, did not possess the requisite professional integrity to carry out their highly remunerated (and publicly funded) public functions and duties without breaking the law.

(6) It is no coincidence that Mr Hadgkiss and Mr Lloyd are close personal friends who are both closely affiliated with far right wing political lobby group, the Institute of Public Affairs and the Liberal Party and who were both appointed by Senator Eric Abetz without merit based selection processes: https://www.theaustralian.com.au/news/in....

(7) Given:

• the evidenced willingness of Mr Hadgkiss and Mr Lloyd to engage in illegal conduct while in public office (as evidenced by the fact that they both were found to have acted illegally within only a short period of time after taking office) apparently without fear of consequence ;
• the abject failure of Mr Hadgkiss’ and Mr Lloyd’s executive colleagues to comply with their legal obligation to report Mr Lloyd’s and Mr Hadgkiss’ illegal activity in a timely manner; and
• that the illegal conduct engaged in by both men had its basis, at least in part, in the closely held political beliefs and affiliations of both men;

it is highly likely that the documents the subject of my request will disclose further misconduct engaged in by these individuals.

The identification and disclosure of misconduct engaged in by highly remunerated statutory officers is in the public interest as well as in the interest of a substantial section of the public.

The charge has been wrongly assessed.

(8) My FOI request of 13 October 2018, followed a request made in similar terms on 21 July 2018, set out here: https://www.righttoknow.org.au/request/h... (the “July request”).

(9) In your response to the July request: https://www.righttoknow.org.au/request/4... - you decided that the applicant was liable to pay a charge of $425.14 relating to 57 documents comprising a total of 132 pages and that formal consultation was conducted (pursuant to section 27 of the FOI Act) with two parties.

(10) However, in arriving at that preliminary charge, and despite the requirements of item 5 of the table in Part 1 of the Schedule to the Freedom of Information (Charges) Regulations 1982, you did not reduce the amount of that charge by 5 hours/$100 (cf. your response to my request here: https://www.righttoknow.org.au/request/4... where you clearly identify in paragraphs 2 and 5, that the first five hours of decision maker time are free of charge). Accordingly, the preliminary charge you imposed in respect of the July request, should have been, at most, $325.14.

(11) While similar, my request was of a significantly narrower scope than that of the July request in that it excluded: i) any document attached to a relevant email, and ii) all but the last email in email chains/threads. It also noted that third party consultation had already been conducted in relation to relevant documents.

(12) Your decision letter of 24 October 2018 confirmed the effect of the narrowed request – there were now only 84 relevant pages (as opposed to 132) and you acknowledged that third party consultation would not be required. But somehow, the preliminarily assessed charge was still disproportionately substantial at $202.94.

(13) Notably, you have assessed the decision-making time in respect of the 84 pages of relevant documentation to be $295.67 (or approximately 15 hours worth of decision-making time). It has generally been accepted that between 30 seconds per page (See 'FF' and Australian Taxation Office [2015] AICmr 25 [23]) to five minutes per page (See 'EU' and Department of Human Services [2015] AICmr 15 [52]) is a reasonable estimate of the time required for an agency to assess, edit and make decisions on documents. Also, the FOI Guidelines explain that any charges imposed under the FOI Act must be fair, accurate and should not be used to unreasonably hinder an applicant from pursuing an FOI request.

(14) Even if the APSC took the upper limit of 5 minutes of decision-making time per relevant page, the aggregate decision-making time for 84 pages would be 7 hours, and not 15 hours you have estimated. In all likelihood, given that the documents at issue are unlikely to be overly complex, it would take the APSC far less than 5 minutes to make decisions in respect of each of the 84 pages at issue, meaning the decision-making time would likely be closer to 3 hours.

(15) I am of the view that you have incorrectly assessed the charge set out in your letter to me of 24 October 2018 with a view to hindering public access to documents that are clearly in the public interest because they are likely to disclose further misconduct engaged in by the former Public Service Commissioner and the former Australian Building and Construction Commissioner.

Conflict of interest

(16) The APSC provides a range of guidance material in respect of public servants’ legal obligations. I refer you to the guidance material provided here: https://www.apsc.gov.au/section-9-report... and note the following statements:

“9.1.4 APS employees have a responsibility to report misconduct, and not to turn a blind eye to unacceptable behaviour.
[…]
9.2.1 Clause 1.3(f) of the Australian Public Service Commissioner's Directions 2013 (the Directions) require all APS employees, having regard to their duties and responsibilities, to report and address misconduct and other unacceptable behaviour by public servants in a fair, timely and effective way. Failure to report suspected misconduct may itself warrant consideration as a potential breach of the Code.” [the APSC should update this material such that it refers to the Australian Public Service Commissioner's Directions 2016 which revoked and replaced the 2013 Directions].

(17) As an executive Group Manager at the APSC, you were aware of Mr Lloyd’s illegal conduct in public office, not least because:

• as a senior executive at the APSC at the relevant time and as the APSC’s Group Manager responsible for the APSC’s FOI processing function, you would have been aware of the contents of the documents released in July 2017 in response to this FOI request: https://www.righttoknow.org.au/request/i... that go to Mr Lloyd’s illegal conduct in public office; and
• you were present, alongside Mr Lloyd, at Senate Estimates in October 2017 when Parliament first raised the issue of Mr Lloyd’s illegal conduct in public office.

(18) Despite having knowledge of Mr Lloyd’s misconduct, I aware you took no steps to report or otherwise address Mr Lloyd’s misconduct (as required by paragraph 14(f) of the Australian Public Service Commissioner's Directions 2016). Given your role at the APSC and your knowledge of the Public Service Act 1999 and the Public Interest Disclosure Act 2013, reasonable steps taken in compliance with your obligation to report and address misconduct in the circumstances would have taken the form of a complaint made to the Merit Protection Commissioner about Mr Lloyd’s conduct such that that conduct could be inquired into pursuant to paragraph 50(1)(b) of the Public Service Act 1999, or otherwise the making of a public interest disclosure to the Commonwealth Ombudsman pursuant to the Public Interest Disclosure Act 2013. But you did not take those steps.

(19) In such circumstances I am concerned that your dealings with my FOI request (which goes to Mr Lloyd’s misconduct in public office) is tainted by a conflict of interest. If dealt with in accordance with the requirements of subsection 13(7) of the Public Service Act 1999, I am of the view that you should have managed this conflict by recusing yourself from making decisions in relation to my FOI request. Noting that most authorised decision-makers at the APSC are in a similar situation, I request that any further decisions taken by the APSC in relation to my FOI request be made by the Public Service Commissioner or the Deputy Public Service Commissioner (noting that those authorised decision-makers joined the APSC after John Lloyd’s resignation and could not readily be said to have a conflict of interest in relation to my request).

Regards
D Watson

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From: FOI
Australian Public Service Commission

Good afternoon D Watson,

The Australian Public Service Commission acknowledges receipt of your email below, in which you have requested a review of the Charge decision, in accordance with section 29(1)(f)(ii) of the FOI Act.

In accordance with section 29(6) of the FOI Act, you are required to receive your review of charges decision within 30 days. Therefore the statutory due date for you to receive your charge decision will fall due on 29 December 2018.

Regards,
Karen

FOI Coordinator

Australian Public Service Commission
Level 4, B Block, Treasury Building
Parkes Place West, Parkes ACT 2600
P: 02 6202 3500    l    E: [email address]

Important: This e-mail is for the use of the intended recipients only and may contain information that is confidential, commercially valuable and/or subject to legal privilege. If you are not the intended recipient you are notified that any review, re-transmission,
disclosure, dissemination or other use of, or taking any action in reliance upon this information is prohibited. If you have received this e-mail in error, please notify the sender immediately and delete all electronic and hard copies of this transmission together with any attachments.

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From: D Watson

Delivered

Dear FOI,

Thank you for your email.

I’m writing to clarify the due date and to add to my submissions of 22 November 2018.

You’ve indicated that the due date for the charges review decision is 29 December 2018. However, by my calculations, the due date is 24 December 2018 (the 30th day is a Saturday). Could you please clarify?

Noting that the APSC has accepted there is public interest in the documents the subject of my request (misconduct and corruption in the public service is clearly in the public interest and is particularly topical at the moment), I refer you to paragraphs 4.74 and 4.86 of the FOI Guidelines which have not been adhered to by the APSC thus far. Paragraphs 4.74 and 4.86 provide state:

“4.74 An agency or minister may waive a charge wholly or in part, but where the charge is only partially waived, it should fully explain and justify the reduced charge. If an agency or minister accepts that disclosure of a document would be in the general public interest […], it may be difficult for it to justify why a charge has been reduced instead of waived in full….

4.86 Where an agency accepts that giving access to the document in question would be in the general public interest, but decides not to waive the charge, the agency should adequately justify why it is appropriate for the charge to be imposed in the circumstances. The agency or minister should also consider whether the imposition of the charge would be at odds with the lowest reasonable cost objective in s 3..”

Regards

D Watson

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From: FOI
Australian Public Service Commission

Good morning D Watson,

Thank you for your email.

You are correct, the due date for your charges review decision is 24th December. My apologies for the confusion. It is anticipated that you will have your decision letter Monday 24th or sooner if possible.
Kind regards
Karen

FOI Coordinator

Australian Public Service Commission
Level 4, B Block, Treasury Building
Parkes Place West, Parkes ACT 2600
P: 02 6202 3500    l    E: [email address]

Important: This e-mail is for the use of the intended recipients only and may contain information that is confidential, commercially valuable and/or subject to legal privilege. If you are not the intended recipient you are notified that any review, re-transmission,
disclosure, dissemination or other use of, or taking any action in reliance upon this information is prohibited. If you have received this e-mail in error, please notify the sender immediately and delete all electronic and hard copies of this transmission together with any attachments.

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From: FOI
Australian Public Service Commission


Attachment C18 2246 Contesting Prelim Charge decision 19 Dec 18.pdf
1.6M Download View as HTML


Good afternoon D Watson

I refer to your request dated 22 November 2018 (below), in which you are seeking a review of Ms Crosthwaite's preliminary charge decision, relevant to your FOI request. Please find attached your charges determination decision.

Regards,
Karen

FOI Coordinator

Australian Public Service Commission
Level 4, B Block, Treasury Building
Parkes Place West, Parkes ACT 2600
P: 02 6202 3500 l E: [email address]

Important: This e-mail is for the use of the intended recipients only and may contain information that is confidential, commercially valuable and/or subject to legal privilege. If you are not the intended recipient you are notified that any review, re-transmission,
disclosure, dissemination or other use of, or taking any action in reliance upon this information is prohibited. If you have received this e-mail in error, please notify the sender immediately and delete all electronic and hard copies of this transmission together with any attachments.

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From: D Watson

Delivered

Dear FOI,

The full amount of the charge has been paid into the APSC's nominated account.

Yours sincerely,

D Watson

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From: FOI
Australian Public Service Commission

Dear Mr Watson

Thank you for your email of 16 January. As of today, the Commission's Finance area has no record of receiving your payment. The Commission's Finance area advises that electronic transfers can take up to two weeks in some cases.

Can you advise the date on which you made the payment and can you confirm the reference you included?

Regards

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From: FOI
Australian Public Service Commission

Dear Mr Watson

I have been advised that a payment of $71.72 has now been received by the APSC.

Thank you and regards.
Susannah

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From: FOI
Australian Public Service Commission

FOI Reference C18/1974

 

D Watson,

 

I refer to your above-referenced request for access to documents under the
Freedom of Information Act 1982 (FOI Act).

 

Your request captures documents which contain the personal information of
third parties.  I have determined that the consultation mechanism under
section 27A of the FOI Act applies.

 

Section 27A of the FOI Act, in accordance with section 15(6)(a) of the FOI
Act, allows for the processing time for responding to your request to be
extended by a further 30 days.  Therefore, you will receive our response
on or before 12 March 2019.

 

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

 

Important: This email remains the property of the Commonwealth and is
subject to the jurisdiction of section 70 of the Crimes Act 1914. It may
contain confidential or legally privileged information. If you think it
was sent to you by mistake, please delete all copies and advise the
sender.

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From: D Watson

Delivered

Dear FOI,

Thank you for your email.

I am writing to dispute the APSC’s decision to invoke the application of section 27A of the FOI Act in relation to my request. I am of the view that decision has been made in error because the APSC has already consulted on the documents the subject of my request pursuant to section 27A of the FOI Act and the FOI Act does not permit an agency to apply section 27A on more than one occasion in relation to the same documents.

My FOI application made of the APSC on 13 October 2018 stated as follows:

“I note that the APSC has, in its processing of the FOI request here https://www.righttoknow.org.au/request/h... already searched for, and identified, 57 documents relevant to my request totalling 132 pages. The further narrowing of the scope of my request (by excluding email attachments and duplicate documents) will have the effect of substantially reducing the document and page numbers concerned. I further note that, as advised by the APSC’ FOI Coordinator (see the APSC’s correspondence dated 9 August 2018 here: https://www.righttoknow.org.au/request/h..., the APSC has already undertaken third party consultation in respect of the documents at issue.”

That third party consultation had already been undertaken (and the associated extension of time already having been claimed by the APSC) in respect of the documents the subject of my request is evidenced by the following:
- Ms Tulloch’s email to the applicant of 8 and 9 August 2018 here: https://www.righttoknow.org.au/request/h...
- Ms Crossthwaite’s notice issued under s.29 of the FOI Act here on 28 August 2018 here: https://www.righttoknow.org.au/request/4... which refers to the formal consultation required with two parties noting that Ms Crossthwaite’s notice was issued at a time more than 30 days after the relevant request was received and therefore in reliance on the additional 30 days claimed pursuant to Ms Tulloch’s emails of 8 and 9 August 2018 above; and
- the notices issued under section 29(1) of the FOI Act by Kerren Crossthwaite (https://www.righttoknow.org.au/request/4... ) on 24 October 2018 and by Michelle Black on 19 December 2018 (https://www.righttoknow.org.au/request/4... ) in that both those notices did not include time and charges related to third party consultation in recognition that third party consultation had already been undertaken in respect of the documents the subject of my request.

One way in which this dispute can be resolved is by way of another FOI request, as follows.

(1) I refer to the APSC’s correspondence with the FOI applicant of 8 August 2018 here: https://www.righttoknow.org.au/request/h... which states “It has now been determined that it is necessary for the Commission to conduct formal consultation with affected third parties as required by section 27A of the FOI Act. As such, in accordance with section 15(6)(a) of the FOI Act, the processing time for responding to your request has been extended by 30 days.”

(2) Noting that the documents the subject of my request are but a smaller subset of the documents the subject of the FOI application here: https://www.righttoknow.org.au/request/h... if the APSC did, in fact, consult with affected third parties as it said it would, it will hold records of that consultation, and as such, further consultation is neither warranted, or permitted by law.

(3) Alternatively, if the APSC invoked section 27A of the FOI Act to consult with third parties in relation to the request here: https://www.righttoknow.org.au/request/h... but it did not, in fact, use the 30 day period provided for under ss.27A and 15(6) to actually conduct that consultation as it said it would and relied upon to issue the s.29 notice here: https://www.righttoknow.org.au/request/4... (some 38 days after the initiating FOI request was received), then there are questions to be answered in respect of relevant APSC staff members’ compliance with their obligations under the Public Service Act 1999.

(4) Under the FOI Act, I seek access to any and all documents prepared and sent by the APSC for the purpose of consulting with affected third parties pursuant to section 27A of the FOI Act in respect of the FOI application set out here: https://www.righttoknow.org.au/request/h...

(5) I agree to the personal information of any person who is not an APSC employee to be redacted from the relevant documents.

Noting the legal obligations that apply to me pursuant to paragraph 14(f) of the of the Australian Public Service Commissioner's Directions 2016 and section 10 of the Public Service Act 1999, could you please provide me with the name of the authoirsed decision-maker who decided to invoke the application of section 27A of the FOI Act (as notified to me on 6 February 2019). Please let me know if I will need to lodge an FOI application to obtain this information.

I, however, am willing to formally withdraw the new FOI application set out in this email upon receipt of written notification from the APSC that it withdraws its decision of 6 February 2019 to again consult third parties under section 27A of the FOI Act in relation to my FOI request of 13 October 2018 and that it will provide a decision on that request on or by 11 February 2019 as required by law.

Yours sincerely,

D Watson

Link to this

From: FOI
Australian Public Service Commission

FOI Reference C18/1974

FOI Reference C19/396

 

D Watson,

 

1.            Thank you for your email dated 7 February 2019.

 

Consultation under section 27A

 

2.            In your message you state that the Freedom of Information
Act 1982 (FOI Act) “does not permit an agency to apply section 27A on more
than one occasion in relation to the same documents”.  With respect, I do
not agree.

 

3.            The main purpose of section 27A is to allow third parties to
contend that a document containing their personal information is exempt
from disclosure under the FOI Act.  Subsection 27A(1) provides that
section 27A applies if it appears to an agency that a third party “might
reasonably wish to make a contention” that a document is exempt from
disclosure.

 

4.            Subsection 27A(2) provides that in determining whether a
person might reasonably wish to make an exemption contention, the agency
may have regard to a range of matters, including any matters the agency
considers relevant.  In the present case, the fact that a third party has
previously made exemption contentions in respect of the same document(s)
clearly indicates that the third party may, again, wish to make exemption
contentions.

 

5.            However, given the passage of time since the first FOI
request, it is quite possible that the third party no longer wishes to
make exemption contentions.  If this is the case, this information would
be relevant to a decision on your current request.  Without undertaking
consultation with the third party, the FOI decision maker cannot know
whether the third party’s opinion on this matter has changed.

 

6.            A further purpose of consultation under section 27A is to
provide third parties with information about their review rights if an
agency decides to disclose their personal information in respect of the
particular FOI request.

 

Further FOI request

 

7.            Your message of 7 February 2018 included a further request
under the FOI Act at the paragraph numbered (4).  I acknowledge receipt of
your FOI request of 7 February 2018.  The timeframe for responding to your
request is 30 days from the day your request was received.  This timeframe
may be extended in certain circumstances.  You will be notified in the
event this occurs.

 

Name of decision maker

 

8.            The name and designation of the person who gave third
parties a reasonable opportunity to make submissions under section 27A was
Sayuri Grady, General Counsel.

 

 

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

P: 02 6202 3500

 

 

Important: This email remains the property of the Commonwealth and is
subject to the jurisdiction of section 70 of the Crimes Act 1914. It may
contain confidential or legally privileged information. If you think it
was sent to you by mistake, please delete all copies and advise the
sender.

Link to this

From: D Watson

Delivered

Dear FOI,

Thank you for your email. I accept that the APSC’s preferred interpretation of s.27A of the FOI Act may be an available one. That said, I submit the following.

1) Any submissions provided by Nigel Hadgkiss or John Lloyd in relation to this matter should be tempered, and given commensurate weighting, according to the fact that both these men have independently been found to be corrupt.

2) The corruption engaged in by both those individuals was facilitated, at least in part, by the failure of management groups at the APSC and the ABCC to take action to report and address that corruption as required by subsection 10(2) of the Public Service Act 1999 and paragraph 14(f) of the Australian Public Service Commissioner's Directions 2016, presumably because it wasn’t in the personal, professional, political and commercial interests of those management groups to do so (indeed, management groups at both these agencies took active steps to conceal the corruption engaged in by both these men, including through their application of the FOI Act). Cf. APSC management’s decision to waste $10,000 to unsuccessfully identify and set the dogs on an APSC staff member who merely corrected a deliberate error of fact/lie perpetuated by the former Prime Minister and John Lloyd’s IPA/Liberal Party mate, Tony Abbott: https://www.smh.com.au/public-service/pu....

3) Any involvement by John Lloyd in the operational or strategic management of a supposedly “independent” statutory agency like the ABCC or its predecessor agency (beyond, for example, formalised participation in eg. recruitment panels) is outside the scope of functions of the Public Service Commissioner as prescribed by the Public Service Act 1999 and is therefore corrupt. Public servants have a legal obligation to bring to light, address and report corruption in the public service. There is currently a strong public interest in corruption in the public sector and the corrupt practices of disgraced public servants, John Lloyd and Nigel Hadgkiss, which were supported by the APSC’s/ABCC’s management groups, lends further support for current calls for a Federal Anti-Corruption Commission.

4) This Government’s tendency to appoint its corrupt Liberal Party/IPA mates to positions of public office on the basis of their political affiliation rather than on merit is:
- the antithesis of what the Public Service Act 1999 requires;
- symptomatic of the contempt with which this Government holds the APS; and
- demonstrative of the politicisation of the APS that has occurred under this Government’s watch and represents the actions of a Government whose philosophies and approach is more closely associated with that of totalitarian third world dictatorships, rather than democratically robust regimes.

Yours sincerely,
D Watson

Link to this

From: FOI
Australian Public Service Commission

Dear Sir / Madam

 

I am writing in relation to your further freedom of information (FOI)
request received by this agency on 7 February 2019.

 

Your request covers documents containing personal information of one or
more individuals who may wish to contend that their personal information
is exempt from disclosure under the Freedom of Information Act 1982 (FOI
Act).  This agency is therefore consulting with those individuals under
section 27A of the FOI Act.  In such circumstances, the timeframe for
responding to your FOI request is extended by 30 days.  A response on your
request is now due by 8 April 2019.

 

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

P: 02 6202 3500

 

From: FOI <[1][email address]>
Sent: Tuesday, 12 February 2019 12:34 PM
To: D Watson <[2][FOI #4880 email]>
Subject: FOI Requests C18/1974 and C19/396 [SEC=UNCLASSIFIED]

 

FOI Reference C18/1974

FOI Reference C19/396

 

D Watson,

 

1.            Thank you for your email dated 7 February 2019.

 

Consultation under section 27A

 

2.            In your message you state that the Freedom of Information
Act 1982 (FOI Act) “does not permit an agency to apply section 27A on more
than one occasion in relation to the same documents”.  With respect, I do
not agree.

 

3.            The main purpose of section 27A is to allow third parties to
contend that a document containing their personal information is exempt
from disclosure under the FOI Act.  Subsection 27A(1) provides that
section 27A applies if it appears to an agency that a third party “might
reasonably wish to make a contention” that a document is exempt from
disclosure.

 

4.            Subsection 27A(2) provides that in determining whether a
person might reasonably wish to make an exemption contention, the agency
may have regard to a range of matters, including any matters the agency
considers relevant.  In the present case, the fact that a third party has
previously made exemption contentions in respect of the same document(s)
clearly indicates that the third party may, again, wish to make exemption
contentions.

 

5.            However, given the passage of time since the first FOI
request, it is quite possible that the third party no longer wishes to
make exemption contentions.  If this is the case, this information would
be relevant to a decision on your current request.  Without undertaking
consultation with the third party, the FOI decision maker cannot know
whether the third party’s opinion on this matter has changed.

 

6.            A further purpose of consultation under section 27A is to
provide third parties with information about their review rights if an
agency decides to disclose their personal information in respect of the
particular FOI request.

 

Further FOI request

 

7.            Your message of 7 February 2018 included a further request
under the FOI Act at the paragraph numbered (4).  I acknowledge receipt of
your FOI request of 7 February 2018.  The timeframe for responding to your
request is 30 days from the day your request was received.  This timeframe
may be extended in certain circumstances.  You will be notified in the
event this occurs.

 

Name of decision maker

 

8.            The name and designation of the person who gave third
parties a reasonable opportunity to make submissions under section 27A was
Sayuri Grady, General Counsel.

 

 

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

P: 02 6202 3500

 

 

Important: This email remains the property of the Commonwealth and is
subject to the jurisdiction of section 70 of the Crimes Act 1914. It may
contain confidential or legally privileged information. If you think it
was sent to you by mistake, please delete all copies and advise the
sender.

References

Visible links
1. mailto:[email address]
2. mailto:[FOI #4880 email]

Link to this

From: FOI
Australian Public Service Commission


Attachment C18 1974 FOI response.pdf
2.1M Download View as HTML


Dear Sir / Madam

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

Regards
___________________________________________________
FOI Officer
Australian Public Service Commission

p : 02 6202 3500 | f : 02 6250 4437
e : [APSC request email] | w : www.apsc.gov.au

show quoted sections

Link to this

From: D Watson

Delivered

Dear FOI,

Thank you for processing my application made under the FOI Act dated 13 October 2018 ('my FOI application').

Under the FOI Act, I seek access to any documents held by the APSC, that relate to my FOI application, and that were provided to, or received from:

- the Minister for the Public Service and/or his office;
- Senator Michaelia Cash and/or her office;
- the Australian Building and Construction Commission; and/or
- the Department of Employment.

Thank you.
D Watson

Link to this

From: FOI
Australian Public Service Commission

FOI Request C19/559

Dear D Watson

I acknowledge your request dated 14 March 2019 seeking access to documents under the Freedom of Information Act 1982 (FOI Act).

The statutory timeframe for responding to your request under the FOI Act is 30 days from the date of receipt. This timeframe may be extended in certain circumstances. For example, an extension to the timeframe may occur if there is a need to conduct formal consultation with affected third parties. Consultation may extend the processing time by an additional 30 days, in accordance with sections 27 and 27A [Consultation – business documents and personal privacy] of the FOI Act. Please let me know if you would like to narrow the scope of your request to exclude personal information of third parties so further consultation may not be required.

You have asked for 'any documents held by the APSC, that relate to my FOI application [Our ref C18/1974] and that were provided to, or received from' certain parties. The documents requested are likely to include documents already considered and released as part of your earlier FOI request. Please let me know if you would like to narrow the scope of your request to exclude documents already released as part of FOI request C18/1974.

In addition, I note that you have referred to the 'Department of Employment' in your email below. I will assume for the purposes of processing your request that your reference to the 'Department of Employment' includes the 'Department of Jobs and Small Business'.

If you have any questions relating to your request, please do not hesitate to contact us at [APSC request email].

Sayuri
FOI Officer

Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, Parkes ACT 2600
GPO Box 3176, Canberra ACT 2601

show quoted sections

Link to this

From: D Watson

Delivered

Thanks for your email.

I’m ok with you redacting the personal info of third parties except where that personal info is of public servants and that personal info is included because of their usual duties/responsibilities (see [6.152] onwards of the FOI guidelines) or the personal info is simply the name of a Minister.

Also, I’m happy to exclude documents that are already in the public domain (including because they were released as part of my earlier FOI request: C18/1974).

Cheers
D Watson

Link to this

From: FOI
Australian Public Service Commission


Attachment C19 396 FOI.pdf
575K Download View as HTML


Dear Sir / Madam

Please find attached correspondence in response to your freedom of information request of 7 February 2019.

Regards

show quoted sections

Link to this

From: FOI
Australian Public Service Commission

Dear D Watson,

Thank you for your email of 14 March 2019 refining the scope of your request C19/559.

You request captures documents which contain the personal information of third parties - namely 'personal information of public servants'. I have determined that the consultation mechanism under section 27A of the FOI Act applies.

The processing time for responding to your request is extended by a further 30 days, to 6 May 2019 (Sunday). You will receive a response on or before 7 May 2019 which is a Monday.

Sayuri
FOI Officer

Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, Parkes ACT 2600 GPO Box 3176, Canberra ACT 2601
Important: This email remains the property of the Commonwealth and is subject to the jurisdiction of section 122.4 of the Commonwealth Criminal Code Act 1995. It may contain confidential or legally privileged information. If you think it was sent to you by mistake, please delete all copies and advise the sender.

Link to this

From: D Watson

Delivered

Dear Ms Seaberg

I refer to your decision of 12 March 2019 in respect of my request made of the APSC under the FOI Act dated 13 October 2018. Under Part VI of the FOI Act, I seek internal review of your access refusal decisions in respect of document #10 (folios 20-22), document #26 (folios 45-46) and document #32 (folios 55-61) for the reasons set out below.

As previously asked, I request that the review be conducted by a person who was not part of John Lloyd’s executive management team (noting those executives chose to turn a blind eye to, and actively conceal, John Lloyd’s illegal conduct in public office and accordingly, those officers should recuse themselves from any involvement in this matter).

In relation to documents #10 (folios 20-22) and #26 (folios 45-46) you have refused access to almost the entirety of those documents on the basis they contain communications to and from Minister Michaelia Cash and the supposedly independent statutory office of the ABCC that amount to deliberative matters/processes. Notably, you’ve stated that the communications concern the “strategies and priorities for the management of the ABCC”

I’m of the view that your access refusal in respect of those documents has been incorrectly made because:

- If the content of the documents contain deliberative matter that should be conditionally exempt, then that claim is belied by the fact that they were sent to John Lloyd, being the Australian Public Service Commissioner, whose statutory role (which does not fall within the employment portfolio) has absolutely nothing to do with the ABCC or the Department of Employment. Accordingly, that these documents were sent to John Lloyd is akin to those documents being sent to any other random public servant who has no legitimate or proper interest in them. That being so, if the documents are of a nature that they’re able to be forwarded to random public servants who have no legitimate or proper interest in them, then they’re not conditionally exempt and are amenable to public release.
- Your access refusal decision is also belied by the fact that the ABCC is supposedly an independent statutory agency that, if operated in accordance with the law, should not be subject to Ministerial/Departmental direction/pressure. Yet you’ve indicated that the contents of these documents contain instances of Minister Cash directing the ABCC in relation to the acquittal of its statutory functions. If that’s true, it’s not the first time Minister Cash has been involved in the potentially illegal direction of a supposedly independent statutory agency (see the current Federal Court litigation involving the Registered Organisations Commission). There’s clearly a public interest in the identification of illegal activity by Commonwealth Ministers particularly when the documents at issue concern the same misconduct engaged in the by same Minister currently being considered by the Federal Court.
- I’m also of the view that your claim that the matters contained in documents #10 and #26 relate to policies/decisions under current consideration is unfounded because the documents are almost 2.5 years old – given the effluxion of time, the change of leadership at the ABCC and the change of Minister, I dispute your claim that the documents relate to policies/decision under “current consideration”.
- I’m also concerned that you have identified public interest factor against disclosure as being disclosure will “restrict the flow of written communications between the Minister and Departments/agencies”, “adversely affect the interest in establishing a working and trusting relationship with a Minister” and “cause agency employees to feel constrained in providing comprehensive written briefings”. In response I refer you to relevant paras 6.82-6.83 of the FOI Guidelines which, in conflict with your reasoning, state:
“6.83 Agencies should start with the assumption that public servants are obliged by their position to provide robust and frank advice at all times and that obligation will not be diminished by transparency of government activities.

6.84 Public servants are expected to operate within a framework that encourages open access to information and recognises Government information as a national resource to be managed for public purposes (ss 3(3) and (4)). In particular, the FOI Act recognises that Australia’s democracy is strengthened when the public is empowered to participate in Government processes and scrutinise Government activities (s 3(2)). In this setting, transparency of the work of public servants should be the accepted operating environment and fears about a lessening of frank and candid advice correspondingly diminished.”

I’m concerned that you’ve refused access to the documents because they will tend to demonstrate misconduct engaged in by a Commonwealth Minister and others – matters of public interest that promote the objects of the FOI Act (see para 6.19 of the FOI Guidelines).

In relation to document #32 (folios 55-61), having regard to the dates of the correspondence, my suspicion is that the content of that document relates to Mr Hadgkiss’ illegal activity in public office. I note that both Mr Lloyd and Minister Cash made certain representations to the Senate concerning their knowledge of Mr Hadgkiss’ corrupt conduct including the time they became of certain conduct. Under the Parliamentary Privileges Act 1987, it is an offence to lie to the Senate – a crime punishable by 6 months imprisonment. There’s a clear public interest in identifying criminal activity engaged in by Ministers of the Crown and senior public servants.

I also note that you have redacted the entirety of document #32 on the basis the entirety of that document contains the personal information of any third party individuals or information relating to any third party organsiations. I contest your claim that it was necessary to redact the entirety of document #32 pursuant to s.22 of the FOI Act on the basis that the entirety of that document concerns the personal information of any third party individuals or information relating to any third party organisations.

I also note that those communications have a security categorisation of “Sensitive: Legal”. While you’ve not redacted the content of the document on the basis that the document is subject to legal professional privilege, any privilege that may have attached to the document was waived at least as soon as it was sent by Mr Hadgkiss to Mr Lloyd.

I’m of the view that you have refused access to the contents of document #32 (folios 55-61) because they will tend to demonstrate misconduct engaged in by a Commonwealth Minister and others – being matters of public interest that promote the objects of the FOI Act (see 6.19 of the FOI Guidelines).

Lastly, I note that the documents that were released by the APSC in response to my request include partisan political commentary between two agency heads who were subject to the requirements of the Public Service Act/APS Code/Values. Michelle Black, of your office, advised in her letter to me received on 24 December 2018, that the content of communications between Mr Hadgkiss and Mr Lloyd the subject of my FOI request constitute “benign email correspondence” and are “not relevant to the general subject matter of corruption” (noting that corruption must include illegal activity under the Public Service Act). Noting the APSC’s role in providing ethical guidance to the APS including in respect of compliance with the APS Code/Values, in the absence of any additional information provided by the APSC, I take, and any other member of the APS is entitled to take, Ms Black’s comments to be representative of the APSC’s official position that the partisan political communications between Mr Hadgkiss and Mr Lloyd facilitated by tax payer funded resources as set out in the documents released by the APSC in response to my request do not constitute a breach of the APS Code/Values (notwithstanding that APSC published guidance materials relating to the APS Code/Values state otherwise) and any similar activity engaged in by any other person subject to the requirements of the APS Code/Values will not, and should not, be subject to sanction of any kind.

Yours sincerely,

D Watson

Link to this

From: FOI
Australian Public Service Commission

FOI Request C19/755

Dear D Watson

I acknowledge your request dated 10 April 2019 seeking internal review under section 54B of the Freedom of Information Act 1982 (FOI Act) certain documents the subject of FOI Decision C19/1974.

The statutory timeframe for responding to your request under the FOI Act is 30 days from the date of receipt - 10 May 2019.

If you have any questions relating to your request, please do not hesitate to contact us at [APSC request email].

Sayuri
FOI Officer

Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, Parkes ACT 2600 GPO Box 3176, Canberra ACT 2601
Important: This email remains the property of the Commonwealth and is subject to the jurisdiction of section 122.4 of the Commonwealth Criminal Code Act 1995. It may contain confidential or legally privileged information. If you think it was sent to you by mistake, please delete all copies and advise the sender.

Link to this

From: HEINEBACK,Kiki
Australian Public Service Commission


Attachment Departmental Scan 07052019 993757 kiki.heineback.pdf
1.5M Download View as HTML


Good afternoon

 

Please see response letter from First Assistant Commissioner, Richard
Bartlett in regards to your request dated 10 April 2019 attached.

 

Kind regards

 

Kiki Heineback 
Executive Assistant to the First Assistant Commissioner

Australian Public Service Commission

Level 5, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

P: +612 6202 3573 W: [1]www.apsc.gov.au

 

Important: This email remains the property of the Commonwealth and is
subject to the jurisdiction of section 122.4 of the Commonwealth Criminal
Code Act 1995. It may contain confidential or legally privileged
information. If you think it was sent to you by mistake, please delete all
copies and advise the sender.

References

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

Link to this

From: FOI
Australian Public Service Commission


Attachment C19 559 Decision.pdf
897K Download View as HTML

Attachment C19 559 Redacted documents.pdf
3.9M Download View as HTML


C19/559

Decision

 

Dear D Watson,

 

Please find attached decision and documents in relation to your FOI
request C19/559.

 

Yours sincerely

Sayuri

 

Sayuri Grady
Authorised FOI Decision maker

Australian Public Service Commission

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

E: [1][APSC request email] W: [2]www.apsc.gov.au

Important: This email remains the property of the Commonwealth and is
subject to the jurisdiction of section 122.4 of the Commonwealth Criminal
Code Act 1995. It may contain confidential or legally privileged
information. If you think it was sent to you by mistake, please delete all
copies and advise the sender.

References

Visible links
1. mailto:[APSC request email]
2. http://www.apsc.gov.au/

Link to this

From: FOI
Australian Public Service Commission


Attachment C19 396 refund.pdf
79K Download View as HTML


UNCLASSIFIED

Dear Sir / Madam

 

Please find attached correspondence in connection with your FOI request of
13 October 2018.

 

Regards

___________________________________________________
FOI Officer
Australian Public Service Commission

p : 02 6202 3500

e : [1][APSC request email]

w : [2]www.apsc.gov.au

 

 

show quoted sections

References

Visible links
1. mailto:[APSC request email]
2. http://www.apsc.gov.au/

Link to this

From: D Watson

Delivered

Dear FOI,

Thank you for your email.

In response, payment came from ME Bank with reference “FOI”.

I would prefer not to provide any further identifying information.

I request that you direct the money the APSC owes me to the publishers of this righttoknow.org website – the OpenAustralia Foundation. OpenAustralia’s account details can be found here: https://www.oaf.org.au/donate/alternativ....

Regards

D Watson

Link to this

We don't know whether the most recent response to this request contains information or not – if you are D Watson please sign in and let everyone know.

Things to do with this request

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