Request for Information - Requirements for exercises of delegation under FOI Act

Kieran made this Freedom of Information request to Office of the Australian Information Commissioner

The request was partially successful.

From: Kieran

Delivered

Dear Office of the Australian Information Commissioner,

This is to be treated as a administrative request for information.

s 26(1)(b) of the FOI Act requires FOI delegates to state their name and designation when using their delegated powers (delegated from their Secretary or CEO) to issue s 26 Statement of Reasons. Similarly, as a formal legal delegation, involving a statutory power, “a delegate literally acts in his or her own name, and signs documents in his or her own name as a delegate of the delegator” (see Australian Government Solicitor, Legal Practice Briefing No 74 (14 December 2004))

Despite this, a review I conducted of the most recent s 26 statement of reason letters published on Right to Know, for all the Commonwealth agencies or businesses listed on their front page (which is the most frequently contacted entities) identified that of the 28 Commonwealth entities there, only 21 of those entities correctly closed those s 26 statement of reasons with a signature block that contained the full name of the officer involved, their signature, and their position title.

7 agencies/entities were non-compliant (and ironically the OAIC was one of them), being the Department of Home Affairs (no position title, just use of ADM), Human Services (first name only, no signature, and ADM only), ATO (minor - only provided first initial and surname, but signature and position title provided), Defence (no signature or position title, just ADM), ASIC (no signature and ADM only), OAIC (no signature or position title, not even ADM), and Veteran Affairs (only position number and ADM).

Veteran Affairs was the only one agency using position number instead of a name (whether partial or full), with no other required detail provided (ADM is simply insufficient).

Details and link to the decision of all agencies surveyed follows:

Department of Home Affairs
Full name, signature, no position title (just ADM) https://www.righttoknow.org.au/request/4...

Department of Human Services
First name only, no signature, no position title (just ADM) https://www.righttoknow.org.au/request/4...

ATO
Initial & Last Name, signature, position title https://iorder.com.au/publication/Downlo...

AFP
Full name, signature, and position title https://www.righttoknow.org.au/request/4...

Attorney-General’s
Full name, signature and position title https://www.righttoknow.org.au/request/4...

PM&C
Full name, signature and position title https://www.righttoknow.org.au/request/2...

DFAT
Full name, signature, and position title https://www.righttoknow.org.au/request/3...

Health
Full name, signature, and position title https://www.righttoknow.org.au/request/4...

Defence
Full name, not signed, ADM only https://www.righttoknow.org.au/request/4...

Finance
Full name, signature, and position title https://www.righttoknow.org.au/request/4...

APRA
Full name, signature and position title https://www.righttoknow.org.au/request/4...

ASIC
Full name, no signature, ADM only https://www.righttoknow.org.au/request/4...

Treasury
Full name, signature, and position title https://www.righttoknow.org.au/request/4...

AEC
Full name, signature, position title https://www.righttoknow.org.au/request/2...

Environment and Energy
Full name, signature, and position title https://www.righttoknow.org.au/request/4...

ABS
Full name, signature, and position title https://www.righttoknow.org.au/request/4...

OAIC
Full name, no signature, no title (not even ADM) https://www.righttoknow.org.au/request/4...

Communications and the Arts
Full name, signature and position title https://www.righttoknow.org.au/request/4...

Jobs and Small Business
Full name, signature and position title https://www.righttoknow.org.au/request/4...

Social Services
Full name, signature, and position title
https://www.righttoknow.org.au/request/4...

Industry, Innovation and Science
Full name, signature and title
https://www.righttoknow.org.au/request/4...

Infrastructure and Regional Development
Full name, signature and title
https://www.righttoknow.org.au/request/4...

Veterans’ Affairs
Position number and ADM only
https://www.righttoknow.org.au/request/4...

ABC
Full name, signature and title
https://www.righttoknow.org.au/request/3...

Agriculture
Full name, signature and title
https://www.righttoknow.org.au/request/4...

APSC
Full name, signature and title
https://www.righttoknow.org.au/request/4...

CASA
Full name, signature and title
https://www.righttoknow.org.au/request/4...

ASADA
Full name, signature and title
https://www.righttoknow.org.au/request/4...

It is apparent that while most agencies are consistently meeting good practice requirements in respect of the delegate information/authorisation, there are a few outliers, including the OAIC.

To that end, can the OAIC advise and provide any documents administratively that indicate any direct advice (beyond the guidelines) given to agencies and other Commonwealth entities over what their requirements are here, and whether the OAIC has ever conducted a scan itself of s 26 SORs (outside of FOI IC) for compliance.

If the OAIC is aware of any IC decisions that touch on this too, I would appreciate the case reference.

Yours faithfully,

Kieran

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Stephanie Johnson left an annotation ()

Kieran,

You are mistaken as to what section 26(1)(b) of the FOI Act says. While it states that the decision maker must include their name, it does not require the decision maker to include their full legal name. This means that a first name, or initials and a surname, do meet the requirements of the legislation. There is not further guidance provided by the OAIC that requires a person's full legal name to be included in a decision.

Similarly, their 'designation' may well be 'authorised FOI decision maker'. You have assumed that FOI decision makers have a title other than "FOI Decision maker" that should be included.

Good luck.

Steph

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Stephanie Johnson left an annotation ()

Kieran,

Further, FOI decision makers are not 'delegates' of the agency head. There is no delegation power in the FOI Act. There is only the power for the Agency Head to 'authorise' staff to act as decision makers.

Accordingly, your quote of the AGS Legal Briefing (about the requirements of delegates) may be misguided.

Good luck

Steph

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Kieran left an annotation ()

I note your unsolicited opinion Steph, I’m just confused as to its proposed value, given you have not provided any supporting evidence for it, beyond the opinion itself.

If you believe what you claim, you must have a reasonable basis to do so, and that requires some evidence in support (relevant evidence is case law, or legal opinion from a published article).

It is important to remember annotations on Right to Know are, as per TOS, required to helpful to the OP, not avenues of debate or assertion of unsupported opinions.

I note you have previously left annotations on other RtK FOIs that make claims which are either unsupported by evidence or indeed are contradicted by the evidence. This is unhelpful to requesters, and I recommend you consider how you approach future annotations, so they are consistent with the RtK TOS.

It is important to remember if a proposed annotation does not assist the requester, and rather is a vehicle for passing unsupported opinions, it should be not be uploaded.

Kind Regards

Kieran

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From: Caitlin Emery
Office of the Australian Information Commissioner


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Dear Sir

 

I acknowledge receipt of your request. A response to your request for
information will be provided at a later date.

 

Please contact me if you have any questions.  

 

Regards

Caitlin Emery

 

Caitlin Emery | Senior Lawyer | Legal Services

Office of the Australian Information Commissioner

Level 3, 175 Pitt Street, SYDNEY NSW 2000

GPO Box 5218 SYDNEY NSW 2001| [1]www.oaic.gov.au

Phone:  +61 2 8231 4225 | E-mail: [2][email address]

Protecting information rights – advancing information policy

[3]OAIC banner for email sig

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From: Kieran

Delivered

Dear Caitlin Emery,

With it being over 30 days since this request was made, can the OAIC advise when a response might be received.

Yours sincerely,

Kieran

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From: Emma Liddle
Office of the Australian Information Commissioner


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Attachment OAICicon ICON information session highlights and other news.pdf
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Dear Mr Knowles

 

I refer to your administrative request for information as follows:

 

… To that end, can the OAIC advise and provide any documents
administratively that indicate any direct advice (beyond the guidelines)
given to agencies and other Commonwealth entities over what their
requirements are here, and whether the OAIC has ever conducted a scan
itself of s 26 SORs (outside of FOI IC) for compliance.

 

If the OAIC is aware of any IC decisions that touch on this too, I would
appreciate the case reference.

 

Please find attached information about the requirement under s 26(1)(b)
provided to members of the OAIC’s Information Contact Officer Network
(ICON) in June 2018. ICON provides news, updates and information about FOI
to representatives from Australian Government Department and Agencies.

 

The June 2018 ICON newsletter also refers to agency resources currently
available on the OIAC website, including information about s 26 statements
of reasons. [1]FOI agency resource 7: Statement of reasons checklist
refers to the requirement to include the name and designation of the
decision maker in the decision statement.

 

Agency resources can be access via this hyperlink:
[2]https://www.oaic.gov.au/freedom-of-infor...

 

The OAIC has not conducted a scan of s 26 statements outside of the IC
review process. The OAIC is unable to provide you with advice about any IC
review decisions that specifically address the requirements of s 26.
However, all IC review decisions are published and the AustLII website
provides a comprehensive database search service of IC review decisions as
part of the Australian Information Commissioner (AICmr) series:
[3]http://classic.austlii.edu.au/au/cases/c....

 

Kind regards

Emma.

 

[4]O A I C logo   Emma Liddle  |  Acting Director

Freedom of Information

Office of the Australian
Information Commissioner

GPO Box 5218 Sydney NSW 2001  |
 oaic.gov.au

+61 2 9824 9717  |  +61 438 646
140  | 
[5][email address]
[6]Facebook | [7]LinkedIn | [8]Twitter |   [9]Subscribe [10]Subscribe to
icon OAICnet newsletter

 

 

 

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From: Kieran

Delivered

Dear Emma,

While it did take a couple of months to get this response, I do appreciate the clarity of this statement from the OAIC ICON response, which stated:

Where the decision relates to a document of an agency, the decision notice needs to include the name and designation of the person making the decision, including the decision maker’s first name, surname and title, to clearly explain their authority to make the decision [FOI Guidelines 3.181]

That does remove all ambiguity and concurs with my understanding in full.

Yours sincerely,

Kieran

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Kieran left an annotation ()

And this highlights why you need to be careful about certain people leaving unhelpful annotations, with opinions that turn out to be uninformed and wrong

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Stephanie Johnson left an annotation ()

Kieran,

It looks like my previous understanding, based on my interactions with various FOI teams and agencies over the years was wrong.

I am sorry for any offense i caused you. I was trying to be helpful but clearly missed the mark by not explaining my reasons for my beliefs.

Here's hoping the various agencies now listen to the OAIC and start complying.

I have taken on board your feedback and will be less obnoxious in future.

Good luck

Steph

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Verity Pane left an annotation ()

Not a failure in ‘explaining my reasons for my beliefs’, so much as stating something factually incorrect overconfidently, in a dismissive way.

People make mistakes however, but it does highlight that we annotators need to make sure we are accurate and careful, and always keep in mind that we need to be helpful.

Interesting results here - the deviation seems to be a recent thing, only with some agencies, perhaps reflecting a loss of professional knowledge and degradation in understanding of administrative law as it applies to FOI.

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Ben Fairless left an annotation ()

Hi Everyone,

Ben here, one of the volunteers that look after the site. Just a reminder that the purpose of annotations are to help people with requests.

I’m a bit concerned with the tone of some of the comments here, and would as that we all try to be as nice to each other as we can - at the end of the day, the purpose of our site is to help people find the answers to the questions they have.

Thanks,
Ben

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