Public interest disclosures
Dear Department of the Prime Minister and Cabinet,
Despite an express object of the Public Interest Disclosure Act 2013 (Cth) requiring that “disclosures by public officials are properly investigated and dealt with” (Public Interest Disclosure Act 2013 (Cth), s 6(d)), under the Freedom of Information Act 1982 (Cth), I request access to any and all documents in the possession of the Department of Prime Minister and Cabinet providing that it is permissible for an inadequate public interest disclosure investigation to remain unremedied by officials in the agency to which an internal disclosure under the Public Interest Disclosure Act 2013 (Cth) was allocated for investigation.
Please provide any documents to me by reply email.
Yours faithfully,
Brutus
OFFICIAL
Reference: FOI/2023/242
Dear Brutus
Thank you for your email of 3 September 2023 in which you made a request
under the Freedom of Information Act 1982 (the FOI Act) to the Department
of the Prime Minister and Cabinet (the Department).
You set out the terms of the request as follows:
Despite an express object of the Public Interest Disclosure Act 2013 (Cth)
requiring that “disclosures by public officials are properly investigated
and dealt with” (Public Interest Disclosure Act 2013 (Cth), s 6(d)), under
the Freedom of Information Act 1982 (Cth), I request access to any and all
documents in the possession of the Department of Prime Minister and
Cabinet providing that it is permissible for an inadequate public interest
disclosure investigation to remain unremedied by officials in the agency
to which an internal disclosure under the Public Interest Disclosure Act
2013 (Cth) was allocated for investigation.
Timeframe for receiving your decision
The 30 day statutory period for processing your request commenced from the
day after the Department received your request, you should therefore
expect a decision from us by 3 October 2023.
Charges
Agencies may decide that an applicant is liable to pay a charge in respect
of a request for access to documents. If the Department decides that you
are liable to pay a charge, we will send you a preliminary assessment of
the charge as soon as possible.
Publication of documents
Please note that information released under the FOI Act may later be
published online on our disclosure log at
[1]https://www.pmc.gov.au/government/depart...,
subject to certain exceptions. If you think you might wish to raise any
objections to the publication of any of the information which may be
released to you please contact us by email at [2][DPMC request email]. If you
do wish to object to the publication of information, you would need to
provide supporting reasons.
Exclusion of officers’ names and contact details
For documents that fall within scope of the request, it is the
Department’s policy to withhold:
o any person’s signature;
o the names and contact details of Australian Public Service officers
not in the Senior Executive Service (SES);
o the mobile or direct numbers of SES officers;
o the names and contact details of Ministerial staff at a level below
Chief of Staff.
If you consider that the information categorised above is relevant to the
terms of your request please let us know at [3][DPMC request email], otherwise
we will take it that you agree to that information being excluded from the
scope of your request (that is, the information will be treated as
irrelevant and deleted from any documents for release). The names and
other details of SES officers will not be withheld unless there is some
reason for that information to be exempt from release.
Further information on FOI processing can be found at the website of the
Office of the Australian Information Commissioner
[4]https://www.oaic.gov.au/freedom-of-infor....
Kind regards
Coordinator | FOI Section[]
Department of the Prime Minister and Cabinet
p. (02) 6271 5849
Ngunnawal Country | One National Circuit Barton ACT 2600 | PO Box
6500 CANBERRA ACT 2600
e. [5][email address] w. [6]pmc.gov.au
[7]cid:image003.jpg@01D78E24.FF2DAFB0 The
Department
acknowledges
and pays
respect to
the past,
present and
emerging
Elders and
Traditional
Custodians
of Country,
and the
continuation
of cultural,
spiritual
and
educational
practices of
Aboriginal
and Torres
Strait
Islander
peoples.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message,
you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If
you
have received this message in error, please notify the sender immediately
by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________
References
Visible links
1. https://www.pmc.gov.au/government/depart...
2. mailto:[DPMC request email]
3. mailto:[DPMC request email]
4. https://www.oaic.gov.au/freedom-of-infor...
5. mailto:[email address]
6. https://www.pmc.gov.au/
OFFICIAL
Reference: FOI/2023/242
Dear Brutus
Thank you for your email of 3 September 2023, in which you made a request
under the Freedom of Information Act 1982 (the FOI Act) to the Department
of the Prime Minister and Cabinet (the Department) in the following terms:
Despite an express object of the Public Interest Disclosure Act 2013 (Cth)
requiring that “disclosures by public officials are properly investigated
and dealt with” (Public Interest Disclosure Act 2013 (Cth), s 6(d)), under
the Freedom of Information Act 1982 (Cth), I request access to any and all
documents in the possession of the Department of Prime Minister and
Cabinet providing that it is permissible for an inadequate public interest
disclosure investigation to remain unremedied by officials in the agency
to which an internal disclosure under the Public Interest Disclosure Act
2013 (Cth) was allocated for investigation.
Administrative access – public material
The Department publishes its Procedures for investigating Public Interest
Disclosures, you can find the current version on our website at [1]Public
Interest Disclosure Procedures
It appears that the document above responds to your request, as it sets
out the Department’s procedures for handling of Public Interest
Disclosures. If we do not hear from you within seven (7) days, by email to
[2][DPMC request email], we will consider your request to be withdrawn and no
further action will be taken.
Revision of scope
Alternatively, if you wish to proceed with the request, we seek additional
information from you to assist the Department to identify document(s) that
would meet the scope of your request.
Your request in its current terms does not provide sufficient information
to enable the Department to identify relevant documents. It is unclear if
the request seeks documents related to all Public Interest Disclosures
made to the Department, or if you are seeking internal procedural
documents. Your email is also framed in a manner that requires the
Department to respond to a question, rather than a request for access to
documents.
You may consider explaining in more detail the specific documents you wish
to access to assist the Department to reasonably identify documents and
conduct searches.
We would be grateful for your response by 21 September 2023.
Further information on FOI processing can be found at the website of the
Office of the Australian Information Commissioner
[3]https://www.oaic.gov.au/freedom-of-infor....
Yours sincerely
Tina
Adviser | FOI Section[]
Department of the Prime Minister and Cabinet
p. (02) 6271 5849
Ngunnawal Country, One National Circuit Barton ACT 2600 | PO Box
6500 CANBERRA ACT 2600
e. [4][email address] w. [5]pmc.gov.au
[6]cid:image001.jpg@01D78E24.FF2DAFB0[7]cid:image002.jpg@01D78E24.FF2DAFB0
[8]cid:image003.jpg@01D78E24.FF2DAFB0 The
Department
acknowledges
and pays
respect to
the past,
present and
emerging
Elders and
Traditional
Custodians
of Country,
and the
continuation
of cultural,
spiritual
and
educational
practices of
Aboriginal
and Torres
Strait
Islander
peoples.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message,
you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If
you
have received this message in error, please notify the sender immediately
by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________
References
Visible links
1. https://www.pmc.gov.au/sites/default/fil...
2. mailto:[DPMC request email]
3. https://www.oaic.gov.au/freedom-of-infor...
4. mailto:[email address]
5. https://www.pmc.gov.au/
6. https://twitter.com/pmc_gov_au
7. https://www.linkedin.com/company/departm...
Dear Tina,
Thank you for your email.
I wish to proceed with my FOI request.
In your email, you note the following:
Your request in its current terms does not provide sufficient information
to enable the Department to identify relevant documents. It is unclear if
the request seeks documents related to all Public Interest Disclosures
made to the Department, or if you are seeking internal procedural
documents. Your email is also framed in a manner that requires the
Department to respond to a question, rather than a request for access to
documents.
You may consider explaining in more detail the specific documents you wish
to access to assist the Department to reasonably identify documents and
conduct searches.
With respect, I think you are wrong. As you would be aware, a request can be described quite broadly and must be read fairly by an agency, being mindful not to take a narrow or pedantic approach to its construction: ‘BI’ and Professional Services Review [2014] AICmr 20. I think you are being pedantic, attempting to find some formal fault that does not, on a lawful reading of the request, exist.
My FOI request is worded well enough. It is a request for access to any and all documents in the possession of the Department of Prime Minister and Cabinet providing that it is permissible for an inadequate public interest disclosure investigation to remain unremedied (i.e. to remain in an inadequately investigated state) by officials in the agency to which an internal disclosure under the Public Interest Disclosure Act 2013 (Cth) was allocated for investigation.
You claim that my FOI request is “framed in a manner that requires the Department to respond to a question, rather than a request for access to documents.” Again, with respect, I think you are wrong. You’ve provided no evidence to support your claim. Plainly, I have sought documents in the possession of the Department. Again, I note that a request can be described quite broadly and must be read fairly by an agency, being mindful not to take a narrow or pedantic approach to its construction: ‘BI’ and Professional Services Review [2014] AICmr 20. That is because “an applicant may not know exactly what documents exist and may describe a class of documents, for example: all documents relating to a subject matter”: FOI Guidelines: 3.310. You must have regard to the FOI Guidelines: FOI Act, s 93A.
To be sure, I have not requested any public interest disclosure that has been made to the Department. I don’t know how you could possibly even entertained such a view on a reasonable reading of my request. I am after any and all documents in the possession of the Department of Prime Minister and Cabinet providing that it is permissible for an inadequate public interest disclosure investigation to remain unremedied (i.e. to remain in an inadequately investigated state) by officials in the agency to which an internal disclosure under the Public Interest Disclosure Act 2013 (Cth) was allocated for investigation.
You say that I might “consider explaining in more detail the specific documents you wish to access to assist the Department to reasonably identify documents and conduct searches.” With respect, you appear to have failed to have regard to the FOI Guidelines. If I knew the “specific documents” you had access to on the subject, I would have requested them. I do not know what documents are in the possession of the Department on the identified subject. For that reason, I have sought access to that very narrow class of documents that is in the possession of the Department of Prime Minister and Cabinet providing that it is permissible for an inadequate public interest disclosure investigation to remain unremedied (i.e. to remain in an inadequately investigated state) by officials in the agency to which an internal disclosure under the Public Interest Disclosure Act 2013 (Cth) was allocated for investigation.
Your communicated views about my FOI request are not as well informed (in the light of the law) as they ought to be.
Please make an effort to engage with my request, rather than a vain attempt to find fault with it.
Please proceed with processing my request.
Yours sincerely,
Brutus
OFFICIAL
FOI/2023/242
Dear Brutus
Please find attached a decision made in response to your Freedom of
Information request.
Kind regards,
Nicholas
Adviser | FOI Section[]
Department of the Prime Minister and Cabinet
p. (02) 6271 5849
Ngunnawal Country, One National Circuit Barton ACT 2600 | PO Box
6500 CANBERRA ACT 2600
e. [1][email address] w. [2]pmc.gov.au
[3]cid:image001.jpg@01D78E24.FF2DAFB0[4]cid:image002.jpg@01D78E24.FF2DAFB0
[5]cid:image003.jpg@01D78E24.FF2DAFB0 The
Department
acknowledges
and pays
respect to
the past,
present and
emerging
Elders and
Traditional
Custodians
of Country,
and the
continuation
of cultural,
spiritual
and
educational
practices of
Aboriginal
and Torres
Strait
Islander
peoples.
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message,
you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If
you
have received this message in error, please notify the sender immediately
by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________
References
Visible links
1. mailto:[email address]
2. https://www.pmc.gov.au/
3. https://twitter.com/pmc_gov_au
4. https://www.linkedin.com/company/departm...
Brutus left an annotation ()
THE HON MARK DREYFUS KC MP'S VIEWS ON COMPLYING WITH THE FOI ACT
Extracted from a transcript of an interview with Kristina Kukolja - The Law Report, ABC Radio National, 28 June 2022
...
KUKOLJA: One of the most important tools in the pursuit of government transparency for journalists and others is the Freedom of Information Act. Recent years have seen a consistent rise in the number of government documents refused for release and delays to accessing documents, as well as heavy redactions. Do you see that as a problem or something that you intend to address?
DREYFUS: I'm not sure that we need to amend the Freedom of Information Act. There were very large reforms made to the Freedom of Information Act by the former government in 2010 when Senator John Faulkner was the responsible minister. I helped with the drafting of some of those reforms. I think what needs to happen is that there needs to be a different approach and, if you like, an implementation of the existing provisions of the Freedom of Information Act. They start with a direction to government to make information as widely available as possible. That's actually what's written into the Freedom of Information Act. And you need to have governments paying attention to decisions made by the Information Commissioner. When the Information Commissioner makes a ruling rather than appealing that ruling off to the Administrative Appeals Tribunal or the Federal Court, a more appropriate response from government would be to simply accept the ruling because she has very often looked very hard at where the appropriate balance is struck. We saw that writ large with the refusal of the former government to pay attention to a decision of the Administrative Appeals Tribunal on the papers of the meetings of First Ministers, which the former government chose to describe as covered by the provisions of the Freedom Information Act that applied to the Federal Cabinet. Justice Richard White, in the Administrative Appeals Tribunal, said that those provisions of the Freedom of Information Act do not apply to meetings of First Minister, because the provisions of the Freedom of Information Act that are there for federal cabinet are for the cabinet, of which I am now the Cabinet Secretary and sitting as a minister in. I think it's really important that when you have a decision made by a court, by a federal court judge, by the Administrative Appeals Tribunal, rather than ignoring the decision it's incumbent on governments to pay attention to those decisions and apply them. And what I'd be looking for in the Freedom of Information area is a change of attitude. By governments a change of attitude, by departments - that rather than looking to how little information can be given out, how to maximise the amount of government information that is made available to the public.
KUKOLJA: Let me ask you, then, in Opposition, the Prime Minister Anthony Albanese was critical of the Morrison Government's decision to keep national cabinet documents secret as were you. Will the Labor Government grant public access to those documents, which as an example would be critical for understanding government decision making during the COVID 19 pandemic?
DREYFUS: There's a convention that applies to the cabinet papers of former governments, which is that they remain the cabinet papers of former governments and not available for public distribution. And by and large observing that convention, we will continue to apply whatever settings the former government had in place. But going forward, very much, it's our view that the meetings of First Ministers are ones that, if there is a need to provide protection from Freedom of Information applications, then the exemptions in the Freedom of Information Act that have been there since the first enactment of Freedom of Information in Australia in 1982, which protect Commonwealth-state relations that those exemptions are the ones which should be relied on. What we don't want to see is the creation of unnecessary secrecy. What we don't want to see is reliance on an exemption that applies to the meetings of Federal Cabinet incorrectly applied to meetings between First Ministers of the states, territories and the Commonwealth ...
FULL TRANSCRIPT AVAILABLE ON THE WEBSITE OF THE HON MARK DREYFUS KC MP - https://www.markdreyfus.com/media/transc...