Dear Department of Industry, Innovation and Science,

This application is in regard to Question 2 of Addendum 6 of RFT No. PRI00003859:

https://www.tenders.gov.au/Atm/DownloadA...

I am seeking all department correspondence that is related to this question. Please also include any document that considers the relevant issues (e.g. legal advice).

Please feel free to remove all duplicate documents.

Please feel free to remove the identity of the person making the inquiry, however please do not remove the original question as asked.

Please do not remove the names of any APS employees.

Kind regards,

Denis Jakota

Freedom of Information, Department of Industry, Science, Energy & Resources

Dear Denis

I refer to your FOI request below.

The link you have provided opens to a log on screen, we are not able to see which document you are referring to.

Could you please provide more information or the document with question 2 of Addendum 6 of RFT No. PRI00003859 to make sure we are searching the correct documents.

Until clarification is received, the department is unable to process your request and your request will be placed on hold until further notice.

Regards

Sasha

FOI Team
Legal, Audit and Assurance | Corporate & Digital
GPO Box 2013, Canberra ACT 2601

Department of Industry, Science, Energy and Resources | www.industry.gov.au

Supporting economic growth and job creation for all Australians

Legal In Confidence - This transmission is intended only for the use of the addressee and may contain confidential or legally privileged information. If you are not the intended recipient, you are notified that any use or dissemination of this communication is strictly prohibited. If you have received this transmission in error, please notify me immediately by telephone and delete copies of this transmission together with any attachments.

OFFICIAL

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Dear Sasha,

I believe this direct link should work:
https://s3-ap-southeast-2.amazonaws.com/...

In case the above link does not work for you, I have pasted the text content of the document below my signature below.

Kind regards,

Denis Jakota

============

REQUEST FOR TENDER (RFT) NO. PRI00003859
Regional Incubator Facilitators
ADDENDUM NUMBER 6

Questions and Answers

As at 1 February 2018

Question 1.

Is an Incorporated Not For Profit, which has Annual Audits, eligible
under the entry criteria? Could a Not For Profit with annual Auditing be
considered as an applicant under this application process or is it strictly
for a Registered Company with a ACN?

Answer 1.

For the avoidance of doubt, to be a successful tenderer you must be, or must
become, a company incorporated under the Corporations Act 2001 (the Act)
with an Australian Company Number.

It is not sufficient to be, or to become, an entity incorporated under another
piece of legislation or to be registered under the Act as a registered Australian
body with an Australian Registered Body Number.

The department cannot provide advice on your eligibility for being
incorporated under the Act. You should contact ASIC if you require any
further information on becoming company incorporated under the Act.

Question 2.

If an applicant has or is employed or subcontracted with a Business
Incubator would that Incubator still be eligible to apply for Regional
Incubator funding?

Answer 2.

To be eligible to participate in the Regional Incubator Facilitator request for
tender, all tenderers must meet the conditions of participation. These
conditions do not preclude companies from tendering where they have
received or intend to apply for the Incubator Support Initiative.
If a company was successful in the tender process for the Regional Incubator
Facilitator role this would also not preclude the company from applying for the
Incubator Support initiative.

-- Page 2 --

Eligibility of applications under the Incubator Support initiative is determined
at the time of application in line with the eligibility criteria outlined in the
Programme Guidelines available on business.gov.au.

If a company that is an incubator or provides incubator services was successful
in the tender process, the company would need to ensure that the individual
fulfilling the Regional Incubator Facilitator services:
• did not complete any work for the incubator, for example, but not
limited to, delivery of programs and services, promotion of the
incubator’s services;
• is engaged solely to conduct Regional Incubator Facilitator
services;
• and there is a clear and visible separation between the Regional
Incubator Facilitator and the incubator.

In addition, the Regional Incubator Facilitator would not be able to provide
assistance to the incubator or review it’s applications in relation to the
Incubator Support initiative. A different Regional Incubator Facilitator would
be allocated to conduct these activities.

It is also noted that successful tenderers need to ensure compliance with the
contract clauses, including those related to confidentiality and conflict of
interest, and this would continue to apply in the described situation.

Dear Freedom of Information,

In my request on 21 August, I provided extensive information to locate the relevant subject matter including the RFT number, the addendum number and the Question number. I also included a URL to the document hosted by AusTender (a government resource hosting department documents providing every opportunity to log on and download the document).

While unnecessary, on 24 August I also provided the entire document content that contains the subject matter of Question 2.

Your decision for this FOI request was due 3 days ago.

Kind regards,

Denis Jakota

Freedom of Information, Department of Industry, Science, Energy & Resources

1 Attachment

Dear Denis

 

I refer to your FOI request of 24 August 2020 to the Department of
Industry, Science, Energy and Resources (the department) for access to
correspondence relating to Question 2 of Addendum 6 of RFT No.
PRI00003859.

 

Due to delays with the search and retrieval for the relevant documents,
your request has been deemed refused, as the department has not provided
you a decision within the statutory timeframe.

 

Current status of your FOI request

 

The department still intends to issue you a decision in relation to your
FOI request. I anticipate this will be by 16 October 2020

 

I will keep you updated as the matter progresses.

 

If you have any questions, please contact the FOI team.

 

Regards

 

 

 

FOI Team

Legal, Audit and Assurance | Corporate & Digital

GPO Box 2013, Canberra ACT 2601

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Dear Freedom of Information,

Please release the FOI reference number for this request.

Kind regards,

Denis Jakota

Freedom of Information, Department of Industry, Science, Energy & Resources

The FOI reference number is in the subject line.

Regards

FOI Team
Legal, Audit and Assurance | Corporate & Digital
GPO Box 2013, Canberra ACT 2601

Department of Industry, Science, Energy and Resources | www.industry.gov.au

Supporting economic growth and job creation for all Australians

Legal In Confidence - This transmission is intended only for the use of the addressee and may contain confidential or legally privileged information. If you are not the intended recipient, you are notified that any use or dissemination of this communication is strictly prohibited. If you have received this transmission in error, please notify me immediately by telephone and delete copies of this transmission together with any attachments.

OFFICIAL

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Dear Freedom of Information,

Further to my previous inquiry and request for FOI reference number, please provide more specific advice as to why this request has been refused.

You cited "search and retrieval" - please confirm that it was not the search but instead the retrieval, and provide the reason as to why the documents were not able to be retrieved.

I will announce it here publicly that the document appears to have been removed from AusTender after I submitted my request. I had provided the content of the document in full and it is established that the Department had authored it AND that the document appears to be now unaccessible via AusTender. Therefore I can only take it that the document was indeed located.

It appears that the same legal officers who provided obscene legal advice (whereby it is somehow possible for an incubator employee to facilitate a grant program for incubators) at the outset of the incubator support initiative program, and who subsequently provided misleading advice in breach of legal directives to an aggrieved ISI applicant on two occasions, have now refused to release the documents to cover up their misconduct.

If this is not the case then reply to this correspondence and advise that it isn't so. In doing so, I will remind you of your legal obligations under the public service act to put beyond doubt the mental element that is required under the criminal code and if you persist in misleading the public I will report you to the Australian Federal Police.

Kind regards,

Denis Jakota

Dear Freedom of Information,

Please also refrain from responding anonymously to this request and include your first name or at the very least your initials.

Kind regards,

Denis Jakota

Freedom of Information, Department of Industry, Science, Energy & Resources

Denis

The request has not been refused, the decision is seen as a deemed refusal on the basis we have not provided the decision by the due date, as mentioned in my email to you the decision should be issued on or before 16 October.

The search and retrieval has taken longer than expected due to making sure we have found all the relevant documents. We are also experiencing a high volume of requests for the same subject matter and this is putting pressure on the relevant line area to conduct searches in a timely manner.

Happy to discuss this further over the phone if you could provide a contact number.

I cannot make comment on other matters you have raised in your email as we only process FOI request and aren’t involved in what is happening in specific matters across the department.

Regards

Sasha Pesic
Senior FOI Officer
Legal, Audit & Assurance Branch

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Dear Sasha,

Most recent responses to this FOI request were anonymous and given that legal counsel from your branch have meddled in similar requests with other applicants, I apprehend similar conduct in this case.

Thanks for clarifying and I'll await retrieval.

Kind regards,

Denis Jakota

Freedom of Information, Department of Industry, Science, Energy & Resources

2 Attachments

Dear Denis

 

Please find attached correspondence in relation to your FOI request of 21
August 2020.

 

Should you have any queries regarding this matter, please contact the FOI
team.

 

Regards

 

Sasha Pesic

 

FOI Team

Legal, Audit and Assurance | Corporate & Digital

GPO Box 2013, Canberra ACT 2601

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Dear Department of Industry, Innovation and Science,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department of Industry, Innovation and Science's handling of my FOI request 'Question 2 of Addendum 6 of RFT No. PRI00003859'.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/q...

This FOI request was made to gain clarity around the source of exceptionally bizarre legal advice that was provided in response to a question from the bemused public (Question 2 of Addendum 6 of RFT No. PRI00003859).

For this reason, as part of my request, I asked for all documents that consider the relevant issues.

Not only were these documents omitted (i.e. internal correspondence among legal counsel), but so was the name of the lawyer who was asked to provide opinion (Page 5 - To field). No reason was provided as to why the lawyer's name was omitted. The name was simply and brazenly redacted.

I was clear in my request that all APS staff names should be left in place. Please refer to paras 6.153-6.154 of part 6 of the OAIC FOI guidelines and understand that it is unreasonable to redact the names of APS staff in absence of special circumstances (note para 6.157). No such circumstances were cited since they do not exist.

To redact the lawyer's name in this situation really boggles the mind - even for a decision made by Andrew Lewis.

Kind regards,

Denis Jakota

Freedom of Information, Department of Industry, Science, Energy & Resources

Denis

Your request for internal review will be sent to a new decision maker.

In response to your query around the removal of names in page 5, this page was an email from a third party to the RFT email address raising the question, the removal of the sender was under section 22, irrelevant material to the scope of the request (third party contact details), the to field has not been removed, but due to when an email comes from the archive system the to email field may not be available anymore, if a name was removed it would be marked with red using the section 47F exempt personal information, as it has been used in other pages, and reasons given in the statement of reasons within the decision.

In light of the above, the internal review will only be looking at the other parts you have raised in your email.

Regards

Sasha Pesic

FOI Team
Legal, Audit and Assurance | Corporate & Digital
GPO Box 2013, Canberra ACT 2601

Department of Industry, Science, Energy and Resources | www.industry.gov.au

Supporting economic growth and job creation for all Australians

Legal In Confidence - This transmission is intended only for the use of the addressee and may contain confidential or legally privileged information. If you are not the intended recipient, you are notified that any use or dissemination of this communication is strictly prohibited. If you have received this transmission in error, please notify me immediately by telephone and delete copies of this transmission together with any attachments.

OFFICIAL

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Dear Sasha,

Let me get this right.

The department receives an FOI request for scandalous legal advice with the aim of revealing the lawyer involved in the ISI fiasco.

The department then delays the processing of the FOI request by archiving the document on 19 September 2020 and then de-archiving the same document only days later (rather than just serving the document), and lo and behold, ever so conveniently, the lawyer's name is removed by the archiving system/procedure, rather than by hand.

Oh Sasha. I really hope you had nothing to do with this. Just because they actioned archiving to remove the lawyer's identity does not make it any less abuse of public office.

You're working major hours, on a public holiday, catching up on work created by the same lawyer. I really hope you had nothing to do with this.

Kind regards,

Denis Jakota

Warrick Alexander left an annotation ()

Is this real? Surely, surely, this isn't real?

Warrick Alexander left an annotation ()

Sasha,

I'm still grappling with this.

Are you suggesting that the department has no records of lawyer correspondence because it miraculously archived the documents after this FOI request was made?

Denis

Warrick Alexander left an annotation ()

The documents were archived end of day (5:12PM) on the last business day (Fri, 19 Sep 20) before the FOI decision was dude (Sat, 20 Sep 20).

Sasha,

Please ensure the review decision maker has access to the full history of this FOI request - https://www.righttoknow.org.au/request/q...

I will call FOI office to discuss this on Thursday.

Please advise when is the best time to call?

Denis

Freedom of Information, Department of Industry, Science, Energy & Resources

Denis

Best time to call me on Thursday would be between 2.30 pm and 5.00pm.

Sasha

Senior FOI Officer
Legal, Audit & Assurance Branch
 (02) 6102 8423 |

OFFICIAL

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Dear Sasha,

To be clear, I requested the actual document that led to the question 2 answer (advice). I did not ask the Department to simply hand back the same document that I provided (the answer). It is clear from the request that I am requesting the source document/correspondence for the answer. This will provide clarity as to the source of the advice.

Kind regards,

Denis Jakota

Freedom of Information, Department of Industry, Science, Energy & Resources

2 Attachments

Dear Denis

 

Please find attached correspondence in relation to your internal review
request of 2 October 2020.

 

Should you have any queries regarding this matter, please contact the FOI
team.

 

Regards

 

Sasha Pesic
Senior FOI Officer

 

FOI Team

Legal, Audit and Assurance | Corporate & Digital

GPO Box 2013, Canberra ACT 2601

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