Dear Department of Finance,

Under s 15 of the FOI Act, I request access to any documents held by the Department of Finance that stand for or support the following proposition in the context of merit based selection:

Where a vacancy lists a set of criteria as essential and a candidate for the vacancy does not meet certain essential criteria, and other candidates do meet those criteria, it is nevertheless appropriate, in the context of merit based selection, to select the candidate that does not meet certain essential criteria if that candidate has "a clear pathway to eligibility within a reasonable time after the recruitment process."

Yours faithfully,

Mircea

FOI Requests, Department of Finance

Thank you for your email, which has been forwarded to the Department’s FOI
Team for their consideration. A member of the FOI Team will respond to
your email in the next couple of days.

 

Kind regards

 

FOI Coordinator

 

FOI Requests, Department of Finance

1 Attachment

SEC=OFFICIAL

Dear Mircea

 

Thank you for your email to the Department of Finance (Finance) dated 14
February 2022 requesting access to the following under the Freedom of
Information Act 1982 (FOI Act):

 

… any documents held by the Department of Finance that stand for or
support the following proposition in the context of merit based selection:

 

Where a vacancy lists a set of criteria as essential and a candidate for
the vacancy does not meet certain essential criteria, and other candidates
do meet those criteria, it is nevertheless appropriate, in the context of
merit based selection, to select the candidate that does not meet certain
essential criteria if that candidate has "a clear pathway to eligibility
within a reasonable time after the recruitment process."

 

Invalid request

 

Your request does not yet fulfil the following requirements prescribed by
subsection 15(2)(b) of the Freedom of Information Act 1982 (FOI Act),
namely:

 

(2) The request must:

(b) provide such information concerning the document as is reasonably
necessary to enable a responsible officer of the agency, or the Minister,
to identify it (emphasis added)… 

 

Revising your request

Your current request is an invalid FOI request, as Finance is unable to
identify the document/s you are requesting. Currently it appears that you
are seeking access to information and not to specific documents as
required by section 15 of the FOI Act. Please provide further information
regarding the documents that you are seeking to access.

 

After speaking with the relevant business area within Finance, we can
broadly advise that:

·       Finance acts in accordance with the relevant legislation, being
the Public Service Act 1999 (PS Act) .

·       Under subsection 22(6) of the PS Act, an agency head is empowered
to set the conditions of engagement provided that the conditions are
clearly stipulated in the job advertisement (so as not to mislead a
candidate about the requirements).

·       As public service employment arrangements are governed by
legislation, administered by the Prime Minister and Cabinet portfolio,
Finance does not have a policy governing this.

 

Given this advice, please advise whether you wish to:

1.       Progress with your request; or

·       if you wish for Finance to process your request under FOI, we ask
that you amend your request so that it clearly identifies the document/s
you are seeking to access (in order to comply with subsection 15(2)(b) of
the FOI Act).

2.       Withdraw your request

·       if the advice provided above is sufficient, then please confirm in
writing that you wish to withdraw your request.

 

We kindly seek a response by Monday 21 February 2022.

 

Timeframe

Should you wish to continue with your request, please note that the
statutory period for processing your request commences from the day after
Finance receives a valid FOI request. We will advise you of the timeframe
for processing your request, once you have provided the clarification
requested above.

 

If you require any further assistance, please contact the FOI team on the
details provided below.

 

Kind regards,

Helen

 

 

[1]cid:image001.jpg@01D20F6A.F1CA1B30

 

FOI Officer | Legal and Assurance Branch

Business Enabling Services

Department of Finance

E: [2][Finance request email]

A: One Canberra Avenue, Forrest ACT 2603

 

 

 

SEC=OFFICIAL

 

show quoted sections

Dear FOI Requests,

You claim that the request that has been made is invalid. The reason is that the request does meet the following requirement:

provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it (emphasis added)…

You claim that the current request is an invalid FOI request because the Department of Finance is unable to identify the document/s you are requesting. You claim that I am seeking access to information and not to specific documents as required by section 15 of the FOI Act. You ask me to provide further information regarding the documents that you are seeking to access.

I have sought a document that supports a particular proposition.

As you know:

a) A request can be described quite broadly and must be read fairly by an agency or
minister, being mindful not to take a narrow or pedantic approach to its construction.
b) An applicant may not know exactly what documents exist and may describe a class of
documents, for example: all documents relating to a particular person or subject
matter; or all documents of a specified class that contain information of a particular
kind; or all documents held in a particular place relating to a subject or person.
c) Although a request under the FOI Act must be for ‘documents’, rather than for ‘information’, a request may be phrased by reference to the information that a document contains. This may in fact be an effective and concise way for an FOI applicant to identify documents.

Please refer to [3.110] of the FOI Guidelines.

Therefore, your claim that the request is invalid is wrong. Your reasons in support fail to account for the FOI Guidelines. Please make an effort to refer to the FOI Guidelines in future.

My request is just fine Helen.

You may wish to review human resource and recruitment documents to find a document that meets the terms of the request.

Yours sincerely,

Mircea

FOI Requests, Department of Finance

Thank you for your email, which has been forwarded to the Department’s FOI
Team for their consideration. A member of the FOI Team will respond to
your email in the next couple of days.

 

Kind regards

 

FOI Coordinator

 

FOI Requests, Department of Finance

1 Attachment

SEC=OFFICIAL
Dear Mircea
 
Thank you for your response below.

As indicated in our email to you dated 17 February 2022, the Department of
Finance (Finance) does not have any documents that support the proposition
that:
 
Where a vacancy lists a set of criteria as essential and a candidate for
the vacancy does not meet certain essential criteria, and other candidates
do meet those criteria, it is nevertheless appropriate, in the context of
merit based selection, to select the candidate that does not meet certain
essential criteria if that candidate has "a clear pathway to eligibility
within a reasonable time after the recruitment process”.
 
This is because, as noted previously, Finance acts in accordance with the
legislation and an agency head is empowered to set conditions of
engagement (Public Service Act 1999, subsection 22(6)) ensuring that they
are clearly stipulated in the job advertisement as not to mislead a
candidate about the requirements. As this is legislated, Finance does not
have a policy governing this specific advice.
 
Accordingly, Finance wanted to give you an opportunity to revise your
request so that it meets the terms of section 15 of the FOI Act.
 
Moving forward, we have taken your FOI request to be for:
 
documents regarding merit based selection and essential criteria regarding
recruitment processes.
 
The processing period for your FOI request commenced from today, 23
February 2022 and a decision to you is due by 25 March 2022.
 
No documents
As noted previously, the FOI Team has consulted with the relevant business
area within Finance and have confirmed that there are no relevant
documents within the scope of your request (including your original
proposition).
 
Next steps
In accordance with the FOI Act, there are two options to finalise your FOI
request:

 1. you may withdraw your FOI request; or
 1. you may request a formal no documents decision from Finance.

 
We kindly ask that you reply at your earliest convenience as to whether
you prefer option 1) or option 2) above. Please note, if we do not receive
a response from you by COB Wednesday, 2 March 2022, we will proceed to a
formal no documents decision.
 
Please contact our FOI Team through this email, if you have any questions
or would like to discuss further.

We appreciate your assistance in this matter.
 
Kind regards
Helen
 
FOI Officer | Legal and Assurance Branch
Business Enabling Services
Department of Finance
E: [1][Finance request email]
A: One Canberra Avenue, Forrest ACT 2603
 
 
 
SEC=OFFICIAL
 

show quoted sections

Dear FOI Requests,

Firstly, in your response Helen, you stated:

As indicated in our email to you dated 17 February 2022, the Department of
Finance (Finance) does not have any documents that support the proposition
that:

Where a vacancy lists a set of criteria as essential and a candidate for
the vacancy does not meet certain essential criteria, and other candidates
do meet those criteria, it is nevertheless appropriate, in the context of
merit based selection, to select the candidate that does not meet certain
essential criteria if that candidate has "a clear pathway to eligibility
within a reasonable time after the recruitment process”.

You did not state in your email of 17 February 2022 that the Department of Finance did not have any documents that support the proposition I set out. Rather, you stated that "Your current request is an invalid FOI request, as Finance is unable to identify the document/s you are requesting". Failing to identify the existence of documents does not mean that the Department of Finance does not have those documents. Thus your statement that you indicated in your email of 17 February that "the Department of Finance (Finance) does not have any documents that support the [relevant] proposition" is false.

Secondly, thank you for confirming that "Finance acts in accordance with the legislation and an agency head is empowered to set conditions of engagement (Public Service Act 1999, subsection 22(6)) ensuring that they are clearly stipulated in the job advertisement as not to mislead a candidate about the requirements." Your answer contradicts statements made by acting Assistant Commissioner McMullan (and reproduced in an article published in the Australian on 8 February 2022 - Untried junior lawyers score key Federal Court positions), the relevant statement being that "there was no contravention of public service legislation because there was 'a clear pathway to eligibility within a reasonable time after the recruitment process." The statement attributed to acting Assistant Commissioner McMullan sounded like nonsense. Your response convinces me that it is nonsense.

Finally, I do not withdraw my FOI request, and I request a formal decision.

Yours sincerely,

Mircea

FOI Requests, Department of Finance

Thank you for your email, which has been forwarded to the Department’s FOI
Team for their consideration. A member of the FOI Team will respond to
your email in the next couple of days.

 

Kind regards

 

FOI Coordinator

 

FOI Requests, Department of Finance

3 Attachments

SEC=OFFICIAL

Dear Mircea,

 

Please find attached a decision in relation to your FOI request (our
reference FOI 22/07).

 

Kind Regards,

 

 

[1]cid:image001.jpg@01D20F6A.AB6FB320

 

FOI Officer | Legal and Assurance Branch

Business Enabling Services

Department of Finance

E: [2][Finance request email]

A: One Canberra Avenue, Forrest ACT 2603

 

SEC=OFFICIAL

 

References

Visible links
2. mailto:[Finance request email]

Ms Whiting

In your letter of decision you state:

On 14 February 2022, the Department of Finance (Finance) received your email, in which you sought access to the following under the Freedom of Information Act 1982 (FOI Act):

Under s 15 of the FOI Act, I request access to any documents held by the Department of Finance that stand for or support the following proposition in the context of merit based selection:
Where a vacancy lists a set of criteria as essential and a candidate for the vacancy does not meet certain essential criteria, and other candidates do meet those criteria, it is nevertheless appropriate, in the context of merit based selection, to select the candidate that does not meet certain essential criteria if that candidate has "a clear pathway to eligibility within a reasonable time after the recruitment process."

On 17 February 2022, the FOI team notified you that, as Finance was unable to identify the specific document(s) you were requesting, your request was invalid under subsection 15(2)(b) of the FOI Act. Finance requested that you revise your request to more clearly identify the documents you were seeking.

On 17 February 2022, you responded to Finance’s email and declined to revise your request.

On 23 February 2022, Finance assisted you to revise your request in order to meet the requirements of section 15 of the FOI Act and took your FOI request to be for:

Documents regarding merit based selected and essential criteria regarding recruitment processes.

Accordingly, your request was taken to be valid as of 23 February 2022 and a decision to you is due by 25 March 2022.

What you have stated in your letter of decision is complete rubbish.

On 17 February 2022, I wrote to Helen and stated:

You claim that the request that has been made is invalid. The reason is that the request does meet the following requirement:

provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it (emphasis added)…

You claim that the current request is an invalid FOI request because the Department of Finance is unable to identify the document/s you are requesting. You claim that I am seeking access to information and not to specific documents as required by section 15 of the FOI Act. You ask me to provide further information regarding the documents that you are seeking to access.

I have sought a document that supports a particular proposition.

As you know:

a) A request can be described quite broadly and must be read fairly by an agency or
minister, being mindful not to take a narrow or pedantic approach to its construction.
b) An applicant may not know exactly what documents exist and may describe a class of
documents, for example: all documents relating to a particular person or subject
matter; or all documents of a specified class that contain information of a particular
kind; or all documents held in a particular place relating to a subject or person.
c) Although a request under the FOI Act must be for ‘documents’, rather than for ‘information’, a request may be phrased by reference to the information that a document contains. This may in fact be an effective and concise way for an FOI applicant to identify documents.

Please refer to [3.110] of the FOI Guidelines.

Therefore, your claim that the request is invalid is wrong. Your reasons in support fail to account for the FOI Guidelines. Please make an effort to refer to the FOI Guidelines in future.

My request is just fine Helen.

You may wish to review human resource and recruitment documents to find a document that meets the terms of the request.

Plainly, Helen’s characterisation of my request as invalid was wrong. The mere fact that an erroneous claim is made by an official in the Department of Finance does not validate the erroneous claim. To then state that on 23 February 2022, Finance (i.e. Helen) assisted me to revise my request in order to meet the requirements of section 15 of the FOI Act is bollocks.

A decision in respect of my FOI request was due on 16 March 2022. Having failed to provide a letter of decision with your reasons by that date, a deemed refusal decision was made by the Minister for Finance. If I would like a review of your decision, my only recourse is external, as opposed to internal, review.

Passing off “alternative facts” as the truth might have become a normalised practice in the Department of Finance Ms Whiting, but that crap has no place in the rest of Australia. Fortunately, there is a public record of my correspondence with Helen. Members of the public and the OAIC, should I decide to seek review, can make up their minds as to who is telling the truth.

How are you not embarrassed by what you have written?

Yours sincerely,

Mircea

FOI Requests, Department of Finance

Thank you for your email, which has been forwarded to the Department’s FOI
Team for their consideration. A member of the FOI Team will respond to
your email in the next couple of days.

 

Kind regards

 

FOI Coordinator