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Particulars of report on the operations of the APSC provided by the Commonwealth Ombudsman

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Dear Australian Public Service Commission,

On 26 October 2020 an article was published on the website of the Guardian Australia.

The article was written by Christopher Knaus. The title of the article is “Key federal agency cleared of intimidating FOI website Right to Know”. The article can be accessed here:

www.theguardian.com/australia-news/2020/....

The article

The article is set out below:

An investigation has cleared one of Australia’s leading federal government agencies of threatening and intimidating a volunteer-run transparency website that hosted freedom of information documents about its former boss.

The Guardian revealed earlier this year that the Australian Public Service Commission’s chief legal counsel had written to the not-for-profit Right to Know website last October, demanding it remove “defamatory material”.

Right to Know hosts FOI documents and associated correspondence in an effort to improve government transparency.

The warning concerned FOI correspondence about the former APSC commissioner John Lloyd and his well-known dealings with the rightwing Institute for Public Affairs, of which he is a former director.

The applicant, an anonymous user named Fliccy, had become frustrated by the agency’s repeated delays and refusals to release documents. They named individual public servants, accused them of failing to comply with FOI law and alleged more serious corruption and misconduct.

The APSC warned Right to Know that by hosting the correspondence between Fliccy and the agency, it was publishing “defamatory material” that included “false and unsubstantiated allegations” against its public servants.

“We request that you immediately remove the following defamatory posts from your website,” the letter said.

The letter was marked “OFFICIAL: Sensitive legal privilege” and highlighted a recent court decision that found website owners could be held liable for material published on their sites by third parties.

The APSC has strenuously denied it intended to convey a threat to the Right to Know volunteers.

Following the Guardian’s story, an unidentified public servant complained to the commonwealth ombudsman, alleging the APSC’s conduct in writing the letter had amounted to legal misconduct.

The commonwealth cannot sue for defamation, either on behalf of itself or individual public servants, and the complaint argued that the APSC’s letter breached rules against improperly invoking the coercive powers of a court and threatening proceedings without proper basis.

The complaint argued the use of the marking “legal privilege” showed the APSC intended to “convey a legal threat of litigation”.

The ombudsman investigated the complaint but earlier this month found that the APSC had not intended to threaten or intimidate the website.

“The investigator does not accept that [the author of the letter] was making a threat – actual or implied – that the agency could, or would, itself instigate legal proceedings on the behalf of the three named employees,” the ombudsman’s report said.

The ombudsman found it was not unreasonable for the APSC to alert the website to “the potential risk of legal liability”.

The ombudsman found that the APSC’s course of action had actually avoided the need for the individual employees to take court action, and that the letter did “not seem unreasonable or indicative of an intention to intimidate”.

“That is, by seeking [the website’s] agreement to remove certain material without the need for the three individuals to resort to (possible) personal legal remedies,” the report said.

The ombudsman did find that the use of the “legal privilege” marker may have been “misguided” but found the author’s explanation for using that marker was plausible.

“In any case, the investigator considers that a marker without the words ‘legal privilege’ should have been used.”

The ombudsman’s office said it was unable to comment on the complaint, which was made under the Public Interest Disclosure Act. It noted that “public interest disclosures are subject to the secrecy provisions of the Public Interest Disclosure Act”.

The APSC said it welcomed the ombudsman’s report and its findings.

The complainant said the decision effectively told all public servants that, should they find a publication they disagreed with or believed to be defamatory, they could use the resources of the commonwealth to contact the author and warn them they would be held liable for defamation if it was not removed.

FOI request

According to section 17AD(d) of the Public Governance, Performance and Accountability Rule 2014 (Cth):

an annual report for a non-corporate Commonwealth Entity (like the Australian Public Service Commission) for a reporting period must include information on the management and accountability of the entity for the period in accordance with section 17AG of the Public Governance, Performance and Accountability Rule 2014 (Cth).

According to section 17AG(3)(b)(iii) of the Public Governance, Performance and Accountability Rule 2014 (Cth):

the annual report must include information on the most significant developments during the period in external scrutiny of the entity, and the entity’s response to that scrutiny, including particulars of any report on the operations of the entity given during the period by the Commonwealth Ombudsman.

The Commonwealth Ombudsman provided the APSC with a report on the operations of the APSC in respect of correspondence sent to the management of Right to Know by the APSC's legal counsel.

I have reviewed the APSC’s annual reports and have not been able to identify the particulars of any report on the operations of the APSC by the Commonwealth Ombudsman in respect of the investigation conducted by the Office of the Commonwealth Ombudsman into correspondence sent to the management of Right to Know by legal counsel at the APSC.

Under the FOI Act, I request access to the particulars of the report on the operations of the APSC by the Commonwealth Ombudsman in respect of the investigation conducted by the Office of the Commonwealth Ombudsman into correspondence sent to the management of Right to Know by legal counsel at the APSC.

I request that the document be provided to me by return email.

Yours faithfully,

L Marsten

L Marsten left an annotation ()

Thank you F Melton. That link leads to some enlightening information.

Dear Australian Public Service Commission,

This morning, an annotation was left in relation to my FOI request. The annotator, F Melton, suggests that the Office of the Commonwealth Ombudsman noted the following in its report on the operations of the APSC in respect of correspondence sent from legal counsel at the APSC to Right to Know:

“the Commonwealth Ombudsman recommends to the [APSC] that it: (i) reviews any internal guidance materials for [APSC] staff relating to dissemination limiting markers; and (ii) provides further training to its Legal Services area with respect to their correct usage.“

I have not been able to locate any particulars that remotely resemble these recommendations in any of the Australian Public Service Commission's recent annual reports. Nor have been able to locate details about the APSC's response to the Commonwealth Ombudsman's scrutiny.

Yours faithfully,

L Marsten

FOI, Australian Public Service Commission

OFFICIAL
Dear L Marsten,

I am writing to acknowledge receipt of your request under the Freedom of Information Act 1982 for access to documents held by the Commission.

The timeframe for responding to your request is 30 days from the date of receipt. This timeframe may be extended in certain circumstances. You will be notified if these circumstances arise and the timeframe is extended.

Regards

FOI OFFICER
Legal Services

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

t: 02 6202 3720 w: www.apsc.gov.au

This email and any attachments may contain confidential or legally privileged information, and neither are waived or lost if the email has been sent in error. If you have received this email in error, please delete it (including any copies) and notify the sender. Please consult with APSC Legal Services before using disclosing any part of this email or attachments to a third party.

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FOI, Australian Public Service Commission

OFFICIAL
Dear L Marsten

I am writing about your 5 November 2022 request for access to documents under the Freedom of Information Act 1982 (FOI Act) held by the Australian Public Service Commission (the Commission).

You requested access to:

“particulars of the report on the operations of the APSC by the Commonwealth Ombudsman in respect of the investigation conducted by the Office of the Commonwealth Ombudsman into correspondence sent to the management of Right to Know by legal counsel at the APSC.”

The Commission wishes to undertake an informal consultation with you to clarify or revise the scope of your request.

Currently, it appears you may be requesting one of the following documents:

• the Public Interest Disclosure (PID) report relating to correspondence sent to the management of Right to Know by legal counsel at the Commission; or

• In the context of requirements under subparagraph 17AG(3)(b)(iii) of the Public Governance, Performance and Accountability Rule 2014, the Commission’s annual reports containing ‘particulars’ of any report on the operations of the Commission given during the period by the Commonwealth Ombudsman regarding correspondence sent to the management of Right to Know by legal counsel at the Commission.

To assist the Commission to better understand the documents required by you, please confirm which of the above options is accurate, or alternatively, revise your request so that it clearly identifies the document/s you are seeking to access.

The Commission kindly seeks your response by COB Friday 11 November 2022.

Regards

FOI OFFICER
Legal Services

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

t: 02 6202 3720 w: www.apsc.gov.au

This email and any attachments may contain confidential or legally privileged information, and neither are waived or lost if the email has been sent in error. If you have received this email in error, please delete it (including any copies) and notify the sender. Please consult with APSC Legal Services before using disclosing any part of this email or attachments to a third party.

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Dear FOI Officer,

I thought my FOI request was clear.

I have not requested “the Public Interest Disclosure (PID) report relating to correspondence sent to the management of Right to Know by legal counsel at the Commission.”

I have requested access to the “particulars of the report on the operations of the APSC by the Commonwealth Ombudsman in respect of the investigation conducted by the Office of the Commonwealth Ombudsman into correspondence sent to the management of Right to Know by legal counsel at the APSC”, such particulars being a necessary inclusion in the annual report of the Australian Public Service Commission under section 17AG(3)(b)(iii) of the Public Governance, Performance and Accountability Rule 2014 (Cth).

As I noted, section 17AG(3)(b)(iii) of the Public Governance, Performance and Accountability Rule 2014 (Cth) provides:

the annual report must include information on the most significant developments during the period in external scrutiny of the entity, and the entity’s response to that scrutiny, including particulars of any report on the operations of the entity given during the period by the Commonwealth Ombudsman.

Notice that section 17AG(3)(b)(iii) of the Public Governance, Performance and Accountability Rule 2014 (Cth) does not limit the provision of particulars to reports provided by the Commonwealth Ombudsman to certain kinds of reports under certain kinds of legislation. The particulars of ANY report on the operations of the entity given during the period by the Commonwealth Ombudsman MUST be reported.

I have reviewed the annual reports of the Australian Public Service Commission for the 2017-2018, 2018-2019, 2019-2020, 2020-2021 and 2021-2022 financial years and the Australian Public Service Commission has consistently reported that no reports on the operations of the Australian Public Service Commission were given during the relevant periods by the Commonwealth Ombudsman. Maybe I am getting on in age and have just missed the relevant entry. I hope that is the case because you would have to agree that a failure to set out the particulars of a report recommending that the APSC “(i) reviews any internal guidance materials for [APSC] staff relating to dissemination limiting markers; and (ii) provides further training to its Legal Services area with respect to their correct usage” would be a failure to set out the particulars of a report on the operations of the Australian Public Service Commission given during the relevant financial year by the Commonwealth Ombudsman.

If you come back to me with a response that the document does not exist and that my request for access to the document that contains the “particulars of the report on the operations of the APSC by the Commonwealth Ombudsman in respect of the investigation conducted by the Office of the Commonwealth Ombudsman into correspondence sent to the management of Right to Know by legal counsel at the APSC” is refused under section 24A of the FOI Act, then I suggest to you that the Australian Public Service Commissioner has signed off on misleading statements in respect of external scrutiny in the annual reports of the APSC. At the very least that would be cause, in my opinion, for an erratum notice to be entered in the APSC’s next annual report. It would also give me cause to apply for the “the Public Interest Disclosure (PID) report relating to correspondence sent to the management of Right to Know by legal counsel at the Commission” under the FOI Act (but not until my current request is properly processed) because the APSC failed to set out the “particulars of the report on the operations of the APSC by the Commonwealth Ombudsman in respect of the investigation conducted by the Office of the Commonwealth Ombudsman into correspondence sent to the management of Right to Know by legal counsel at the APSC” in its annual report.

Yours sincerely,

L Marsten

FOI, Australian Public Service Commission

1 Attachment

OFFICIAL
Dear Applicant

A decision notice is attached.

Regards

FOI OFFICER
Legal Services

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

t: 02 6202 3720 w: www.apsc.gov.au<http://www.apsc.gov.au/>
[three hexagons][twitter icon]<https://twitter.com/PublicServiceAU> [facebook icon] <https://www.facebook.com/AusPublicService/>

This email and any attachments may contain confidential or legally privileged information, and neither are waived or lost if the email has been sent in error. If you have received this email in error, please delete it (including any copies) and notify the sender. Please consult with APSC Legal Services before using disclosing any part of this email or attachments to a third party.

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