Dear Australian Public Service Commission,

I refer to a freedom of information decision issued by an official in the Office of the Commonwealth Ombudsman in December 2023:

https://archive.org/download/foi-2023-10....

In response to a request for access to a report setting out feedback provided to the Australian Public Service Commission, an official in the Office of the Commonwealth Ombudsman identified an eight page document dated 15 December 2022.

According to the decision maker, the “document located and within the scope of your request includes the Office’s findings, comments and suggestions relating to an investigation, communicated to an agency under s 12(4) of the Ombudsman Act 1976.”

Subsection 12(4) of the Ombudsman Act 1976 (Cth) provides that the “Ombudsman may, if he or she thinks fit, furnish comments or suggestions with respect to any matter relating to or arising out of an investigation by him or her to any Department, body or person other than a Department, body or person to which or to whom he or she has furnished a report under section 15 relating to that matter or to matters that include that matter.”

Under the Freedom of Information Act 1982 (Cth), I request access to the report issued from the Office of the Commonwealth Ombudsman, dated 15 December 2022, which “includes the Office’s findings, comments and suggestions relating to an investigation, communicated to [the Australian Public Service Commission].”

Yours faithfully,

Cynthia T

Dear FOI officer,

Thank you for your email confirming receipt of my FOI request of 13 February 2024.

In your email you have stated "we note that the documents advised in your request are the same or largely similar to documents that is currently the subject of an IC review" but the fact is that two SES employees in the APSC have said, in response to my FOI request for access to any reports on the operations of the Australian Public Service Commission given during the 2022-2023 financial year by the Commonwealth Ombudsman, that there are no documents that exist.

Contrary to your statement, my IC review application is about Samantha Montenegro's claim that “all reasonable steps have been taken to find documents within the scope of your request, and … no such documents falling within scope were found”: https://www.righttoknow.org.au/request/1.... Ms Montenegro's claim, which I believe to be false, is the subject of my IC review request. Her inadequate searches are the subject of my IC review request.

I remind you that both Melanie McIntyre and Samantha Montenegro found, as part of their statutory duties under the FOI Act and in response to my request for access to any reports on the operations of the Australian Public Service Commission given during the 2022-2023 financial year by the Commonwealth Ombudsman, that “all reasonable steps have been taken to find documents within the scope of your request, and … no such documents falling within scope were found”: https://www.righttoknow.org.au/request/1... https://www.righttoknow.org.au/request/1....

I expect to receive a lawful decision in response to my FOI request of 13 February 2024 from an official in the APSC within the statutory timeframe.

Yours sincerely,

Cynthia T

Dear SM,

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

I request an internal review of your handling of my FOI request 'Report on the operations of APSC' on all ground. The reasons for decision are marred by both factual and legal errors. The legal errors extend to relying on irrelevant authorities.

I note that paragraph 26(1)(b) of the FOI Act 1982 (Cth) provides that where, in relation to a request, a decision is made relating to a refusal to grant access to a document in accordance with the request or deferring provision of access to a document, the decision‑maker shall cause the applicant to be given notice in writing of the decision, and the notice shall, where the decision relates to a document of an agency, state the name and designation of the person giving the decision.

"SM" is not a name; they are initials. Please ensure that the person who conducts the internal review decision provides his or her name and designation as required by law.

It's also worth noting that paragraph 26(1)(b) is informed by a constitutional imperative. Specifically, all people must be capable of bringing an application under section 75 of the Constitution against officers of the Commonwealth. Without identifying yourself, you would be seeking to subvert that entrenched constitutional right. The High Court has clearly and repeatedly identified the significance of section 75 of the Constitution to the concept of legality in Australia.

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

Yours faithfully,

Cynthia T

Dear Mr Furlong,

I write to you about MR24/00880.

In your email you have said:

"If you wish to proceed with this IC review, please provide a copy
of any notification emails sent by the Right to Know website’s
administrator about the FOI request or a screenshot of the ‘My requests’
page of your account on the Right to Know website (after you log into your
Right to Know account) showing the FOI request in question. You may also
upload a plain text copy of this correspondence to the request on Right to
Know and provide us with confirmation of this."

I am unable to send documents to you using the Right to Know website, but I can upload a plain text copy of the email you sent to me today, which is what I have done below.

Yours sincerely,

Cynthia T

--------------------------------------------------------------------------------------------------------------------

Our reference: MR24/00880
Agency internal review reference: LEX 872

Agency initial decision reference: LEX 814

By email: ​ [1][FOI #11097 email]

Information Commissioner review application about the Australian Public
Service Commission

Dear Cynthia T,

I refer to the application for Information Commissioner review (IC review)
of an internal review decision made by the Australian Public Service
Commission (the Agency) under the Freedom of Information Act 1982 (Cth)
(the FOI Act).

I note that:

* On 15 April 2024, the Agency notified the FOI applicant of their
internal review decision via the nominated Right to Know (RTK)
electronic address ‘[FOI #11097 email]’.

1. On 24 May 2024, the Office of the Australian Information Commissioner
(OAIC) received an IC review application which similarly provided the
contact email address of
‘[FOI #11097 email]’.

At this time, the OAIC does not have sufficient evidence to be satisfied
that you were the FOI applicant and, therefore, that you had a right to
apply for IC review.

Action required by you before: 19 June 2024

Section 54L(3) of the FOI Act provides that an Information Commissioner
review (IC review) application may be made by, or on behalf of, the person
who made the request to which the decision relates.

As such, if you wish to proceed with this IC review, please provide a copy
of any notification emails sent by the Right to Know website’s
administrator about the FOI request or a screenshot of the ‘My requests’
page of your account on the Right to Know website (after you log into your
Right to Know account) showing the FOI request in question. You may also
upload a plain text copy of this correspondence to the request on Right to
Know and provide us with confirmation of this.

Discretion not to continue to undertake an IC review

Under s 54W(c) of the FOI Act, the Information Commissioner may decide not
to continue to undertake a review if an applicant fails to comply with a
[2]direction of the Information Commissioner. [1.3]

The Direction as to certain procedures to be followed by applicants in
Information Commissioner reviews, issued by the Australian Information
Commissioner under s 55(2)(e)(i), states:

* An application for IC review may be made by, or on behalf of, the person
who made the request to which decision relates (s 54L(3)). The OAIC may
require information about the applicant’s identity to establish that
they are the person who made the original FOI request or evidence that a
third party is authorised to seek review of the decision by that person.
[1.15]

1. The Information Commissioner may decide not to undertake an IC review,
or not continue to undertake an IC review, where an IC review
applicant has failed to cooperate in progressing the IC review
application or the IC review without reasonable excuse (s 54W(a)(ii)).
[1.24]

2. Applicants must respond to enquiries from the OAIC within the period
provided unless there are circumstances warranting a longer period to
respond. Applicants who are satisfied with the decision and do not
wish to proceed with the IC review must advise the OAIC in writing.
Applicants who are not satisfied with the Agency or Minister’s
decision must explain why they disagree with the decision and the
basis on which they wish to proceed with the IC review. [1.22] and
[1.33]

If you do not provide the information requested by 19 June 2024, the OAIC
will finalise this matter on the basis that we are not satisfied the IC
review application has been made by, or on behalf of, the person who made
the FOI request.

Assistance

If you are unable to respond by 19 June 2024, you must request more time
at the earliest opportunity and no later than 17 June 2024. Requests for
more time must explain why you need more time, and you must propose a new
date to provide your response.

If you require assistance regarding this email, please contact us at
[3][email address].

Please quote the reference MR24/00880 in all correspondence.

Kind regards,

[4][IMG] Georgia Furlong (she/her)

Review Advisor

Freedom of Information Branch

Office of the Australian Information Commissioner

Sydney

P 1300 363 992 E [5][email address]

The OAIC acknowledges Traditional Custodians of Country across Australia
and their continuing connection to land, waters and communities. We pay
our respect to First Nations people, cultures and Elders past and present.

[6]Subscribe to Information Matters

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References

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Dear Ms Furlong,

I write to you about MR24/00880.

Please find a link to a copy of your email of 12 June 2024, which I have copied and uploaded to the Right to Know website in plain text format, below:

https://www.righttoknow.org.au/request/r...

Yours sincerely,

Cynthia T

Dear OAIC - FOI DR,

I write to you about MR24/00880 (LEX872).

On 12 July 2024, Melanie McIntyre of the Australian Public Service Commission provided me with a decision revising Sam Montenegro’s decision to refuse to grant access to the report of the Commonwealth Ombudsman’s findings, comments and suggestions relating to an investigation conducted by the Australian Public Service Commission: https://www.righttoknow.org.au/request/1...

The redacted Ombudsman’s report has been published online: https://www.righttoknow.org.au/request/1...

The Ombudsman’s report reference is “2021-104592” and the APSC reference is “PID-2020-400006”. I put those references into Google as search terms and from the search results it is clear that the Ombudsman’s report relates to an investigation conducted by the APSC into recruitment decisions in a Commonwealth agency.

In fact, the Ombudsman’s report provides as much in the opening paragraph.

Ms McIntyre has redacted the report of the Ombudsman’s findings, comments and suggestions on two grounds: s 47E(d) and s 47F. In my opinion neither applies.

Section 47F

Melanie McIntyre has redacted the name of the APSC’s investigator under s 47F, but that is not appropriate. According to documents published by the APSC on Right to Know under the FOI Act, the investigator has been publicly identified:

a) https://www.righttoknow.org.au/request/9...

b) https://www.righttoknow.org.au/request/9...

c) https://www.righttoknow.org.au/request/1...

The investigator’s name has also been widely reported in the media: https://www.fedcourt.gov.au/__data/asset...

So redacting the name of the investigator has no lawful basis.

After conducting a Google search using “2021-104592” and “PID-2020-400006” as search terms, it became clear that there are scores of documents that have been released by the Commonwealth Ombudsman under the FOI Act that identify the selected registrars as well as those who have been accused of unlawful conduct such as patronage. Most of those documents are published on archive.org, which Melanie McIntyre appears to be aware of because in a recent decision published on Right to Know, she granted access to documents in full on the basis that the documents were published on archive.org: https://www.righttoknow.org.au/request/1...

While the documents in question can be seen by conducting a search of “2021-104592” and “PID2020-400006” as search terms on archive.org, if you would like me to identify the relevant documents, please let me know. Some examples of relevant documents include the s 51 report of the APSC’s investigator, the investigator’s correspondence with court officials between September 2020 and December 2020 and documents from the Ombudsman’s office allocating the investigation to the APSC (along with the reasons why the APSC should investigate the matter under s 41(2) of the Public Service Act).

If the names of court officials have been redacted under s 47F in the Ombudsman’s report setting out the Ombudsman’s findings, comments and suggestions, those names should not be redacted because they are known to be associated with the Ombudsman’s findings, comments and suggestions because the Ombudsman has published their details in documents published under the FOI Act.

Section 47E(d)

In order to claim that the redactions applied under s 47E(d) are lawful, Ms McIntyre would have to satisfy the information commissioner that the predicted effect on the “proper and efficient conduct” on the APSC’s operations would be such as to warrant the redactions. But it is well established under the FOI Guidelines that where disclosure of the relevant document reveals unlawful activities or inefficiencies, the conditional exemption claimed under s 47E(d) will not apply: FOI Guidelines, 6.123.

The document in question is by definition a document that revels the inefficiencies of the APSC’s handling of an investigation because it is a document setting out the findings, comments and suggestions of the Ombudsman about the way that the APSC handled an investigation into unlawful conduct. Section 47E(d) cannot be relied on to withhold information because doing so would be to permit the APSC to withhold information about the inefficiencies and/or unlawful characteristics of the investigation.

Therefore, Melanie McIntyre has incorrectly applied redactions to the document on the putative basis that s47E(d) applies in this instance.

The PGPA Rule

As I noted in my reasons for IC review, every non-corporate Commonwealth entity has reporting obligations. Those reporting obligations are set out in various items of legislation, including the Public Governance, Performance and Accountability Rule 2014.

Subparagraph 17AB(3)(c) of the Public Governance, Performance and Accountability Rule 2014 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.

A report that “includes the Office’s findings, comments and suggestions relating to an investigation, communicated to [the Australian Public Service Commission]” constitutes any report on the operations of the Australian Public Service Commission given during the period by the Commonwealth Ombudsman.

The APSC, which has a lawful obligation to report particulars of any report on the operations of the Australian Public Service Commission given during the period by the Commonwealth Ombudsman, should not be able to rely on the conditional exemptions under the FOI Act to withhold information about the Ombudsman’s report setting out findings, comments and suggestions on the APSC’s investigation.

For these reasons, whether taken severally and together, Melanie McIntyre’s decision to grant access to a substantially redacted s12(4) report is not, in the light of the law, correct.

Please proceed with the IC review.

Yours sincerely,

Cynthia T

Dear OAIC - FOI DR,

I write to you about MR24/00880.

For your information, documents that were the subjects of access decisions (full access granted to some) by the Office of the Commonwealth Ombudsman have come to my attention. These documents include a copy of the decision made by Mr Anstey, which sets out Mr Anstey's comments and suggestions. In the light of that document being in the public domain, it is all the more difficult, in my opinion, for the APSC to continue to insist that the redactions applied to the document requested in MR24/00880 will a) have a substantial adverse effect on the operations of the agency, and b) affect the privacy of individuals caught by the investigation report.

Once the IC review application actually reaches the point where the Information Commissioner or FOI Commissioner is assessing it, please let me know. I will provide links to the documents in the public domain.

Yours sincerely,

Cynthia T

Dear Australian Public Service Commission,

Under the Freedom of Information Act 1982 (Cth), I request access to any and all correspondence, sent or received by Dr Gordon de Brouwer from 1 July 2023 to the date of this request, that relates to (in the broadest sense) PID-2020-400006, an investigation handled by Kate McMullan of the APSC.

Correspondence relating to PID-2020-400006 could include, but is not limited to, things like memos from the Ombudsman’s office arising from the Ombudsman’s investigation, memos about FOI requests, internal memos about the disclosure investigation (including the inadequacy of the investigation), memos about referral of the underlying issues to the NACC (the referral has been flagged in the AFR: https://www.afr.com/politics/federal/cor... ) etc.

Yours sincerely,

Cynthia T

Dear Ms Larsen

I write to you about MR24/00880.

This email is response to your correspondence of 8 August 2025.

The purpose of this email is to set out my concerns about your proposal to recommend a decision be made under s 54W(b) of the FOI Act.

Email address

The correspondence that was sent to me on 8 August 2025 in relation to MR24/00880 was sent to the wrong email address. My registered email address for IC review MR24/00880 is foi+request-11097-5102d845[at]righttoknow.org.au. Will Martin sent Meka Larsen's correspondence to foi+request-10772-2062ee1b[at]righttoknow.org.au. Please ensure that any further correspondence is sent to the registered email address for MR24/00880.

General objects of the FOI Act and the inappropriateness of your proposal in light of the objects of the FOI Act

One of the general objects of the FOI Act is that the Parliament intends that functions and powers given by 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: FOI Act, s 3(4).

The document that I have requested is an 8 page document to which redactions have been applied: https://www.righttoknow.org.au/request/1... .

In your notice, you have alluded to the fact that if a decision is made under s 54W(b) of the FOI Act to close the IC review, I will have an opportunity to apply to the ART, but that I will be forced to pay an application fee. The application fee is $1,148.

Any discretion exercised under s 54W(b) is not an unfettered one; it is subject to the principles of statutory interpretation.

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation: Acts Interpretation Act 1901 (Cth), s 15AA.

Having regard to an individual’s duties and responsibilities, upholding the APS Value in subsection 10(2) of the Public Service Act 1999 (Cth) requires you to act in a way that is right and proper, as well as technically and legally correct or preferable: Australian Public Service Commissioner's Directions 2022 (Cth), s 14(e).

When it comes to the exercise of powers under statutes, the context of the exercise of the power must be considered at first instance, and not merely if there is some ambiguity in the wording of the provision. As the High Court said in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408:

“The modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous … In particular, as McHugh JA pointed out in Isherwood v. Butler Pollnow Pty Ltd , if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance.”

You are obligated, by statute and case law propounded by the High Court of Australia, to exercise powers in a way that gives effect to an interpretation of a provision that best achieves the purpose or object of an enactment. In the case of an exercise of s 54W(b), the relevant official in the OAIC must exercise the discretion in a manner that best achieves the object of the FOI Act that requires facilitating and promoting public access to information, promptly and at the lowest reasonable cost.

An exercise of the discretion in a way that forces me to pay $1,148 for a decision is respect of access or otherwise to an eight page document is contrary to the object of facilitating and promoting public access to information, promptly and at the lowest reasonable cost.

With respect, your proposal is not a legally sound one. Your proposal is contrary to the explicit object of the FOI Act. The exercise of a discretion in a way that fails to BEST achieve the purpose set out in subsection 3(4) of the FOI Act would be unlawful for falling foul of both s 15AA of the Acts Interpretation Act 1901 (Cth), as well as your statutory duty to act in a way that is right and proper, as well as technically and legally correct or preferable, which is set out in the Australian Public Service Commissioner's Directions 2022 (Cth). Your proposal is precisely that – a proposal to exercise a discretion in a way that, in light of the circumstances (a request for access to an eight page document) does not BEST achieve the purpose set out in subsection 3(4) of the FOI Act would be unlawful for falling foul of both s 15AA of the Acts Interpretation Act 1901 (Cth).

Contingencies assumed and unsupported claims of identity or similarity

In your correspondence of 8 August 2025, you stated:

“The decision under review is of a level of complexity that would be more appropriately handled through the procedures of the ART. In particular this IC review is part of a larger cohort of complex and interrelated matters currently before the OAIC involving the same or similar FOI requests … Given this, it would be more efficient for the related matters to be progressed together.”

You have not identified which other matter my FOI request is related to.

You have not identified how my request for access to an eight page document is the “same or similar” to other FOI requests. So far as I can see on Right to Know, this is the only request for access to the any reports on the operations of the Australian Public Service Commission given during the 2022-2023 financial year by the Commonwealth Ombudsman.

To the extent that you are suggesting that my FOI request is the same or similar to FOI requests that you have sent your copied-and-pasted correspondence to on Right to Know (for example, https://www.righttoknow.org.au/request/a... , or https://www.righttoknow.org.au/request/r... , or https://www.righttoknow.org.au/request/i... ), my FOI request is clearly not the “same or similar” to those requests. The documents requested by those other applicants are totally different to what I have requested.

Even if there are the “same or similar” FOI requests (which, again, I note that you have failed to identify), you have simply assumed that the ART will invariably bunch together all of the applications for review on the basis of a dubious claim that the FOI requests are the “same or similar”.

You do not have the institutional authority to determine what the ART will do. You do not have the institutional authority to assume that the ART will exercise its powers in a way that you think might best effect a purpose you appear wedded to. With respect, your suggestion that the power under s 54W(b) will be exercised in anticipation of a contingent event (“for the related matters to be progressed together” by the ART) over which you have not control or say is baseless. It's little more than pie in the sky.

The exercise of powers made according to law are not made on the basis of pie in the sky. There are grounds for judicial review of such decisions.

Since you have assumed that the ART will invariably act in a way that you have no control over, and since that assumption is based on the premiss that my FOI request is the “same or similar” to a “larger cohort of complex and interrelated matters currently before the OAIC”, for which no evidence has been provided, your proposal to request a person to exercise a discretionary power under s 54W(b) is, with respect and clearly, baseless (in that it is based on assumptions over which you have not control and which may not be effect, and an equivalence drawn between my request and a “larger cohort of complex and interrelated” FOI requests, which you have provided no evidence of existing, that you allege are the “same or similar” to mine).

Developments

On 20 July 2024, I wrote to you about MR24/00880 and the issues I had with Melanie McIntyre's revised decision of 12 July 2024: https://www.righttoknow.org.au/request/r...

In my email, dated 20 July 2024, I noted concerns about Ms McIntyre's reliance on conditional exemption 47F and 47E(d).

Since that time, there have been substantial developments in relation to the document that I requested.

The Commonwealth Ombudsman has released a less redacted copy of the document that I requested. That less redacted document is published on the Commonwealth Ombudsman's FOI disclosure log: https://www.ombudsman.gov.au/__data/asse... , pages 2 – 9.

As can be seen from the copy of the 8 page document on the Ombudsman's website, the section 47F exemption in respect of the investigator's name has not been applied.

The substance of that 8 page document, which is based on a decision made by Mark Anstey in the Office of the Commonwealth Ombudsman on 12 December 2022, has been released under the FOI Act in full: https://archive.org/details/pid-2020-400...

On 31 August 2023, Jodie Hanlon of the Office of the Commonwealth Ombudsman made a decision to release the document in full (FOI-2023-10045), and the document released under FOI has been published online.

The document released by Jodie Hanlon sets out a report on the operations of the Australian Public Service Commission given during the 2022-2023 financial year by the Commonwealth Ombudsman. It sets out the inadequacies of a Kate McMullan's investigation. It contains the essence of the 8 page document that I have requested. The APSC cannot claim that section 47E(d) applies in respect of the 8 page document because the substance of the 8 page document has been released by the Commonwealth Ombudsman and has been published. There can be no substantial adverse effect on the operations of the APSC because the information is public information.

Contrary to your claim that the IC review is complex, the facts of the case demonstrate that it is simple. Section 47E(d) has no application on account of, first, the substance of the document being in the public domain as a result of Jodie Hanlon's decision to release it in full (FOI-2023-10045) and, second, as I noted in my email of 20 July 2024, the document setting out information about the inefficiencies and/or unlawful characteristics of Kate McMullan's investigation (contrary to FOI Guidelines, para 6.115).

As to the inapplicability of s 47F – s 47F has no application because Kate McMullan's report on the investigation has been released, in full, by the Office of the Commonwealth Ombudsman under the FOI Act (https://archive.org/details/pid-2020-400... ), with the names of the individuals involved published in full.

Conclusion

In light of the circumstances and the fact that the substance of the document is already in the public domain, it would be both inappropriate and, in the light of the Acts Interpretation Act 1901 (Cth) and High Court authority, unlawful to exercise the power under s 54W(b) to close the IC review and force me to pay $1,148 to secure my rights to a lawful decision under the FOI Act because such an exercise of power would fail to BEST achieve the purpose set out in subsection 3(4) of the FOI Act, which is to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

Contrary to the Meka Larsen's claims, the matter is not complex because it is in respect of a single 8 page document that has been, in part, released to the public and, more importantly, has been in substance released to the public in full on account of the substance of the document being released by the Office of the Commonwealth Ombudsman (in a decision dated 12 December 2022 issued by Mark Anstey: https://archive.org/details/pid-2020-400... ).

Much of Ms Larsen's justifications are based on, first, contingencies over which neither she nor I have any control, and, second, on the dubious statement that my FOI request is the “same or similar” to a “larger cohort of complex and interrelated matters currently before the OAIC”, which Ms Larsen has not supported with any evidence. Ms Larsen's notification letter is merely a cookie-cutter letter, which has been sent to others, devoid of context and loaded with unwarranted assumptions.

In the circumstances, an exercise of a discretion under s 54W(b) would be both inappropriate and, in the light of authority, unlawful.

The IC review should be handled by the OAIC.

Yours sincerely,

Cynthia T

Dear Ms McIntyre,

I write to you about MR24/00880, which is an IC review application before the Information Commissioner. On 8 August 2025, Ms Meka Larsen of the Office of the Australian Information Commissioner sent me correspondence: https://www.righttoknow.org.au/request/1...

I have provided submissions in response to Ms Larsen's correspondence of 8 August 2025. My submissions can be accessed online: https://www.righttoknow.org.au/request/r...

Yours sincerely,

Cynthia T