Notice from acting Commonwealth Ombudsman McKay to Sia Lagos about an investigation into the handling of a public interest disclosure by the APSC

Response to this request is delayed. By law, Federal Court of Australia should normally have responded promptly and by (details)

Dear Federal Court of Australia,

In the latter half of March 2022, the acting Commonwealth Ombudsman, Penny McKay, sent a document to the Chief Executive Officer and Principal Registrar of the Federal Court, Sia Lagos, about the Ombudsman's decision to commence an investigation into the Australian Public Service Commission's handling of a public interest disclosure that had been allocated to the APSC in mid-May 2020.

Under the FOI Act, I request that document.

Yours faithfully,

Ray B1

Federal Court of Australia

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Federal Court of Australia

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External FOI, Federal Court of Australia

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OFFICIAL
Dear Ray B1

Please find attached correspondence from the Federal Court of Australia.

Kind regards,

FOI Officer
Federal Court of Australia

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Dear FOI Officer,

I am contesting the charges and the manner in which the charges have been assessed.

You claim that it took 15 minutes for searches to be conducted by FOI officers and the Human Resources department for the document that was sent from Penny McKay to Sia Lagos about the acting Ombudsman's decision to commence an investigation into the Australian Public Service Commission's handling of a public interest disclosure that had been allocated to the APSC in mid-May 2020. Why would there be a need for the Human Resources department to get involved in the search for the document? I think a simple email to Sia Lagos’ personal assistant requesting her to provide any documents received from the Commonwealth Ombudsman’s office in late March 2022 would have sufficed. Writing that email would have taken less than 60 seconds and a search conducted by the personal assistant would have taken at most 2 or 3 minutes.

You also claim that it will take an estimated 6.5 hours to examine the documents, consult with two individuals about the documents, make a decision and prepare a response. If you honestly believe that it will take 6.5 hours (taking into account lunch and tea breaks – a full day to consider a document about the acting Ombudsman's decision to commence an investigation into the Australian Public Service Commission's handling of a public interest disclosure that had been allocated to the APSC in mid-May 2020) FOI decision makers in the Federal Court really should make more of an attempt to be productive and should spend less time erecting impediments to legitimate FOI requests for access to documents. There is no way that, by any objective measure, the time and cost estimate for the consideration of the FOI request could be justified.

Also, what need is there to consult two individuals? The Court has a dubious history when it comes to consultations requests. In one instance, Registrar Hammerton-Cole consulted a person about redacting a signature and, on that basis, extended the time to respond to the FOI request by 30 days (https://www.righttoknow.org.au/request/c... and https://www.righttoknow.org.au/request/c...). That decision was legally unjustifiable in the light of the Justice Jagot’s decision in Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of information) [2015] AATA 995. In another instance, B Henderson simply made up the requirement for lawful consultation and was forced into the embarrassing position of confessing to having lied about the need for consultation (https://www.righttoknow.org.au/request/u...). To the extent that you believe there is a requirement to consult Ms McKay or Ms Lagos, that is unjustifiable. The scope of the FOI request is also defined by reference to “Sia Lagos” and “Penny McKay”. It would be futile to attempt to remove references to those names in the relevant document. Also, the mere appearance of names on a document does not give rise to an obligation to consult. In any case, it does not hours to prepare and consider consultation letters.

This is a very simple FOI request. I have sufficiently described the nature of the document. I have identified its provenance (the document was sent to Ms Lagos by Alexandra Feo of the Office of the Commonwealth Ombudsman, on behalf of Ms McKay). It should not have taken 15 minutes to find a document so recently sent to Ms Lagos. If the Federal Court has problems with its file management, that is a problem for the Court. I have no intention of footing the bill for the Court’s inefficiencies.

In determining whether to charge a person, the objects of the FOI Act must be taken into account. The FOI Act provides that functions and powers given in the FOI Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost. An agency or minister should have regard to the lowest reasonable cost to the applicant, to the agency or minister, and the Commonwealth as a whole. Where the cost of calculating and collecting a charge might exceed the cost to the agency of processing the request, it may generally be more appropriate not to impose a charge.

In light of the salary (including leave entitlements, superannuation etc) paid to the FOI Officer who prepared the letter setting out the estimated charges, and the salary paid to the person who generated an invoice for the estimated charges, I find it hard to believe that the preparation of the letter setting out estimates charges, and the generation of an invoice for the charges, and the dispatch of those documents could justify the request for a $3.75 claim. In reality, the cost would be for about 6 minutes (and that too is generous); so $1.50. There is no way the preparation of this letter and generation of the invoice, and the dispatch of both documents cost less than $1.50 (or $3.75). How could anybody justify the imposition of such a paltry sum when the lowest reasonable cost requirement is taken into account, as it must, under the Act?

There is no way that the estimates charges fairly reflect the work involved in providing access to the document(s) requested.

This business about imposing charges is a feeble attempt by the Federal Court to unnecessarily delay access or to discourage an applicant from exercising the right of access conferred by the FOI Act. The Federal Court has consistently been unable to produce documents that should exist. For example, the Federal Court has not been able to produce classification evaluation documents for the EL2 and SES1 National Judicial Registrar documents. The Federal Court has not been able to produce vacancy notifications published in the Public Service Gazette for the EL2 and SES1 National Judicial Registrar documents. The Federal Court has not been able to provide evidence of role reviews of the National Judicial Registrar roles. The Federal Court has not been able to provide the certification issued by the Australian Public Service Commissioner’s representative for the selection process pertaining to the SES1 National Judicial Registrar role.

Now that it is becoming clearer that there is considerable substance in the allegations that were recorded in The Australian in February 2022, the Court has decided to erect this roadblock so that the truth might remain obscured. That won’t work.

The search charges should be rescinded because 15 minutes for the search is excessive. The search charge should not been imposed because the cost of imposing the charge exceeds the transaction costs associated with imposing the charge.

The proposed charge for the processing of the FOI request is unjustified. There is no way that it would take more than 5 hours for a competent and reasonably efficient public servant to process the FOI request. Without more, any claim to the contrary is not only laughable but pitiable.

Yours sincerely,

Ray B1

External FOI, Federal Court of Australia

OFFICIAL
Dear Ray B1

I acknowledge receipt of your email below contesting the charges as advised by letter from the Federal Court of Australia dated 15 July 2022 in relation to your FOI request of 3 July 2022.

Kind regards

FOI Officer
Federal Court of Australia

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