Request for Review of PM decision - ABCC and PMO
Dear Office of the Australian Information Commissioner,
I write to request a review of the decision of the Prime Minister's office in relation to my FOI which is available at the website below.
https://www.righttoknow.org.au/request/a...
I seek review of the PMO decision both in relation to the sufficiency of the search and in relation to the refusal to provide the two documents located in relation to item 2 of the request.
In relation to the sufficiency of search, it is not clear from the decision that the decision maker has taken appropriate steps to undertake the minimum searches that would be expected based on the scope of my request. In particular, the decision maker refers to and seems to have limited their searching to "relevant file management systems" without explaining or confirming that all documents within the scope of my request would be expected to be included within that system. There is also no evidence in the letter that the decision maker checked with other staff within the PMO or the PM whether they had any documents within scope of this request. I note that my request extends to emails, electronic messages such as whatsapp and signal and consistent with the OAIC's Guidelines would extend to documents that are official documents of a Minister but which are held or stored on personal devices.
Thank you very much.
Yours faithfully,
BE
Our reference: MR22/01812
Agency reference: PM/22/006
BE
By email: [1][FOI #9544 email]
Receipt of your IC review application
Dear BE,
Thank you for your application for Information Commissioner Review (IC
review).
The Office of the Australian Information Commissioner (OAIC) is currently
considering your application.
We understand that you are seeking a review of the searches undertaken by
the respondent to identify all documents relevant to your request and the
exemption applied to the documents under s 34 of the FOI Act.
If you wish to advise the OAIC of any changes to your circumstances,
including your contact details or if your FOI request has been resolved,
please write to [2][email address] and quote MR22/01812.
Otherwise we will write to you with an update on next steps once your
application has been assessed.
Kind regards,
Jennifer Zhou
[3][IMG] Intake and Early Resolution Team
Freedom of Information Regulatory Group
Office of the Australian Information
Commissioner
GPO Box 5218 Sydney NSW 2001 |
[4]oaic.gov.au
1300 363 992 [5][email address]
[6][IMG] | [7][IMG] | [8][IMG] | [9]Subscribe to OAICnet newsletter
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Dear OAIC - FOI DR,
Would it be possible to recieve an update on this matter, including confirmation of next steps noting the significant amount of time that has elapsed since my request.
Yours sincerely,
BE
Our reference: MR22/01812
Agency reference: PM/22/006
BE
By email: [1][FOI #9544 email]
Progress update on IC review application
Dear BE
Please accept our apologies for the delay in responding to your request.
Your IC review application is currently awaiting assessment by a senior
member of the FOI team. We are currently prioritising the assessment of
matters according to date received. While we are working to assess these
matters as quickly as possible, we currently have approximately 300
matters awaiting assessment, with approximately 160 received prior to your
application.
While we are unable to expedite matters at this stage, we are able to
consider whether the matter should be finalised under s 54W(b) to allow
you to apply directly to the Administrative Appeals Tribunal ([2]AAT).
Please let us know should you wish to request this. Otherwise we will
contact you to advise of next steps in the matter after it has been
assessed.
Yours sincerely
Romina Domenici
[3][IMG] Freedom of Information Regulatory Group
Office of the Australian Information
Commissioner
GPO Box 5218 Sydney NSW 2001 |
[4]oaic.gov.au
1300 363 992 [5][email address]
[6][IMG] | [7][IMG] | [8][IMG] | [9]Subscribe to Information Matters
Our reference: MR22/01812
Agency reference: PM/22/006
BE
By email: [1][FOI #9544 email]
Dear BE
Thank you for your application for review. We have today informed the
Prime Minister of Australia that the Information Commissioner will
undertake an IC review and requested information to assist with
progressing the review.
We will provide you with an update when we have heard from the Prime
Minister of Australia.
Kind regards
[2][IMG] Samra Karim (she/her)
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P +61 2 0000 0000 M +61 400 000 000 E
[3][email address]
Please note I work on Mondays and Wednesdays.
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.
[4]Subscribe to Information Matters
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
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4. https://www.oaic.gov.au/engage-with-us/n...
Our reference: MR22/01812
Agency reference: PM/22/006
BE
By email: [1][FOI #9544 email]
Your IC review application about the Office of the Prime Minister of
Australia
Dear BE
I refer to your application for IC review of a decision made by the Prime
Minister of Australia (PMA) on 7 October 2022.
On 9 August 2023, the PMA notified the Office of the Australian
Information Commissioner (the OAIC) it had made a revised decision to give
you partial access to the documents.
Can you please notify us by 6 September 2023, if you now wish to:
o Withdraw the IC review application, or
· Proceed with the IC review application.
Should you wish to proceed with the IC review application, please provide
the following information by 6 September 2023:
1. identify the aspect(s) of the agency or Minister’s decision about
which the review is sought
2. state why you disagree with the agency or Minister’s decision
3. identify which documents you consider have been wrongly refused
or which exemptions have been incorrectly applied
Intention to decline to continue IC review
Please note that the Commissioner’s written [2]direction to IC review
applicants provides that:
o where an applicant wishes to proceed with a review of a substantive
[or revised] decision they must explain why they disagree with the
decision and the basis on which they wish to proceed with the IC
review [1.33], and
o applicants must respond to enquiries from the OAIC within the period
provided unless there are circumstances warranting a longer period to
respond [1.22].
Section 54W(c) of the FOI Act provides that the Information Commissioner
may decide not to undertake, or continue to undertake, an IC review where
an applicant fails to comply with a direction of the Information
Commissioner.
Should we not receive a response from you to this email by 6 September
2023, your IC review application will be finalised by a delegate of the
Information Commissioner under s 54W(c).
If you have any questions regarding this email, please contact us via
email at [3][email address]. Please quote the OAIC reference number at
the top of this email in all correspondence.
Kind regards
[4][IMG] Di Abdo
Intake and Early Resolution Team
Freedom of Information Branch
Office of the Australian Information
Commissioner
GPO Box 5288 Sydney NSW 2001 |
[5]oaic.gov.au
1300 363 992 | [6][email address]
[7][IMG] | [8][IMG] | [9][IMG] |
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
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Dear OAIC - FOI DR,
I confirm I wish to proceed with the aspect of the review relating to the sufficiency of search. In particular, whilst a revised decision has been made in relation to the redactions in the original document, the searches undertaken are clearly insufficient.
I would appreciate a short extension until 13 September to provide more detailed reasons in support of my request for review.
Yours sincerely,
BE
Our reference: MR22/01812
Agency reference: PM/22/006
Dear BE,
Thank you for your email.
I acknowledge your request to proceed.
Your request for an extension of time to 13 September 2023 is granted.
Kind regards
Dianne Abdo | Assistant Review Adviser
Freedom of Information
Office of the Australian Information Commissioner
GPO Box 5218 Sydney NSW 2001 | oaic.gov.au
[email address] | 1300 363 992
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Dear OAIC - FOI DR,
As mentioned in my previous email, I am seeking a review of the sufficiency of the searches undertaken by the Prime Minister's office in relation to my FOI.
In general terms, the scope of my FOI request was for documents and communications between the Prime Minister and his office and certain union representatives and employees in relation to a specific topic AND internal communication within the Prime Minister's office in relation to that same topic.
In my request I made it clear that included within my request were the Prime Minister's communications.
The recent decision by the PMO provides further detail in relation to the process undertaken in conducting searches. That process demonstrates that the method being used by the Prime Minister's office to undertake searches is significantly insufficient to what a reasonable person would expect. In fact, the searches undertaken by the PMO are so deficient it creates the impression that there has been a deliberate attempt to circumvent the operation of the FOI Act.
The PMO limited searches to two advisers who, in the opinion of the decision maker were responsible for the subject areas where it is clear from the scope of the request that the search is broader - particularly noting that it also seeks internal communications.
To highlight the issue - any internal communications not involving these individuals would not have been identified in the searches. Further, any communication responsive to item 1 of my request that did not involve these individuals would not have been captured.
My request specifically identified that I was seeking communications that the PM may have had personally. However it is clear from the decision letter that no attempt was made to check with the Prime Minister about whether he had any communication. This would be a standard and reasonable expectation.
Whilst acknowledging that the PM has a busy job, to exclude the PM in the way the decision maker has is to, in effect, exclude the PM from the operation of the FOI Act in circumstances where parliament has specifically included official documents of a Minister within its scope. There are strategies that can be implemented to reduce the amount of time that the Prime Minister would need to personally spend on this (including having searches done of his emails etc by an employee with appropriate access). The PM could have been asked to confirm whether he had any communication that would have been caught by the request - if he did not, this would have required very little of the PM's personal time. If he did, strategies could then have been implemented so that administrative assistance was provided to him to identify and provide the relevant documents to the decision maker.
In addition, noting the scope, there is no reasonable basis to have limited the search to two employees. As last reported in May 2023, the Prime Minister's office consists of 56 employees. In addition to advisers with specific responsibility for the areas concerned there are a range of other employees, who may, in the usual course of their roles have access to the types of documents being sort. For example, the issue was in the media at the time so it would be reasonable to expect that members of the media team may have access to documents that were within the scope of the request. Further, senior members of the Prime Minister's office (eg but not limited to Chief of staff, Deputy Chief of Staff, Principal Advisers etc) should all have been required to confirm whether they have documents. A number of staff within the Prime Minister's office also have known connections with the unions identified. In these circumstances, it is reasonable to expect that they may also hold relevant documents.
Whilst in some instances it will be reasonable to limit the scope of searches to specific areas within an agency where documents are most likely to be held, the Prime Minister's office is not a large organisation (compared with agencies which may have thousands of employees). It would have been relatively straightforward to send an email to all PMO staff setting out the request and asking staff to confirm by return email whether they held any documents caught by the request. Alternatively, it may have been reasonable to identify that certain very specific positions within the office would not have access to the documents sought due to the nature of their roles - however this would be a much more limited cohort.
The decision maker asserts that the two advisers she identified would have known if any documents existed. However, the basis upon which she considers that the would be aware of communications by other team members is unclear. For example, given the public profile of this matter, it is reasonable to expect that there could have been communications between other members of the office on the topic for a range of legitimate reasons - the way in which searches have been conducted have artificially limited this.
If a reasonable approach had been adopted I would not be seeking a review - even if I held concerns about the sufficiency of the approach. However the approach is so fundamentally lacking it raises the very real risk that the Prime Minister and his office are circumventing the operation of the FOI Act by limiting the way in which searches are undertaken.
Noting the amount of time that has passed since I made the original request - and that the requests included access to messages - there is a significant risk that documents which existed at the time I made the request may now be deleted. Although I understand the volume of work that the OAIC otherwise has on at the moment, I consider there is a significant public interest in progressing a review of the sufficiency of search aspect as the approach adopted by the Prime Minister makes a mockery of the FOI system. This would be concerning enough if it was the approach being adopted by an agency, but when it is the Prime Minister and his office so blatantly attempting to misuse and abuse the FOI process it has the potential to send a message to other agencies and Ministers that this sort of approach is acceptably.
If this decision is upheld it is likely that going forward the Prime Minister's office will limit the application of FOIs by strategically limiting the searches conducted within the office to a very limited number of individuals. Whilst acknowledging that the Prime Minister and his office are undoubtedly very busy, processing FOIs is a core function of any Minister or agency and the Prime Minister's office should meet basic expectations about the scope of searches. In this regard, PMC also provides the Prime Minister's office with administrative support in relation to FOIs so whilst there would of course be an administrative burden on the PMO from this or other FOIs, they do receive additional support from PMC to process these requests.
Yours sincerely,
BE
Our reference: MR22/01812
Agency reference: PM/22/006
Be
By email: [1][FOI #9544 email]
Dear Be
By way of update, The Office of the Australian Information Commissioner
(OAIC) is currently awaiting further information from the Prime Minister
of Australia.
Once the OAIC has received this information, the matter will be progressed
to the next step of case management.
Kind Regards,
[2][IMG] Dipali Goel (she/her)
Paralegal | Intake and Early Resolution Team
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P +61 2 9942 0493 M +61 411 740 615 E
[3][email address]
I work part-time and my working days are: Mondays, Tuesdays, Wednesdays
and Thursdays.
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.
[4]Subscribe to Information Matters
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
Visible links
1. mailto:[FOI #9544 email]
2. https://www.oaic.gov.au/
3. mailto:[email address]
4. https://www.oaic.gov.au/engage-with-us/n...
Dear OAIC - FOI DR,
Thanks for your update in December. I was wondering if you could provide an update on where this review is now at.
Have you received the outstanding information from the Prime Minister yet and are you in a position to provide an update on next steps. If the information has not been provided, can you let me know when this information is due to be provided by the Prime Minister to OAIC so that I can understand when I may receive a decision on this.
Thank you for all of your work on this.
Yours sincerely,
BE
Dear BE,
The Prime Minister's Office has provided the information we requested.
My team will review this information for completeness, then hand over to the Reviews team for case management.
Unfortunately I can't give you an estimate of how long the IC review may take.
Regards,
Heath
Heath Baker (He/him)
Director | FOI Branch
Office of the Australian Information Commissioner
GPO Box 5288 Sydney NSW 2001 | oaic.gov.au
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.
Subscribe to Information Matters