Role evaluation
Dear Australian Public Service Commission,
I am making this request for access to documents that may be in the control of the Office of the APSC. If the documents are not in the control of the APSC, do not transfer this request to the agency that officials in the APSC believe has the documents. If the requested documents are not in the control of the APSC, please simply refuse access to the documents under section 24A of the FOI Act.
As to my right to elect whether I would like the Office of the Commonwealth Ombudsman to deal with this request and not transfer it to another agency, I refer you to the Federal Court of Australia’s judgment in Bienstein v Attorney-General [2007] FCA 1174, [38]. The law on the matter is settled and clear.
Under the Freedom of Information Act 1982 (Cth), I request access to the role evaluation record, prepared between 1 January 2017 and 31 December 2020, that shows that the SES Band 1 classified National Judicial Registrar & District Registrar role in the Queensland District Registry of the Federal Court was, in the light of the work value of the group of duties described in the work level standards and a proper job analysis, lawfully reclassified and allocated an Executive Level 2 classification for the purposes of rule 9 of the Public Service Classification Rules 2000 (Cth).
Yours faithfully,
Marius
OFFICIAL
Dear Marius,
Please find attached a consultation notice in relation to your recent
freedom of information request.
Kind Regards,
FOI OFFICER
Legal Services
Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601
t: 02 6202 3813 w: [1]www.apsc.gov.au
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______________________________________________________________________
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Dear Melanie McIntyre,
Having considered your letter, I am not inclined to and, thus, will not revise my FOI request.
The reasons you have provided are incoherent and irrelevant. Also, the time estimate you have provided to process the request is beyond excessive. The estimate is orders of magnitude beyond what would reasonably be required to handle such a straightforward request.
Paragraphs 13 and 14 of your decision suggest to me that you have not read my FOI request well enough.
Paragraph 11 is just strange. Why would the contents of a role review document, that would contain no personal information (it’s a review of a role, which is independent of any person who holds the role), need to be redacted? It's an impersonal document that, in the ordinary course, would be made available to any member of the public. Also, why would there be such a “volume of material” in respect of a role review for a single role that you would need 78 hours to process the request?
Of what relevance is paragraph 12 to my FOI request? The FOI process is not suspended because an agency has a priority matter to deal with. If this were the case, then, by way of example, Services Australia would have suspended all FOI processing during the Robodebt Royal Commission. That did not happen. There is no basis in law for what you have noted in paragraph 12 of your decision.
There’s nothing difficult about the request. I note that an article published in The Australian on 10 February 2022 provides the following in relation to the role review of the SES Band 1 classified National Judicial Registrar & District Registrar role in Queensland:
Ms McMullen’s investigation concluded that “a role review process … had resulted in certain positions being found suitable for either (classification)” (i.e. Legal 2 or SESB1).
(See: https://www.fedcourt.gov.au/__data/asset...)
Ms McMullen was provided with the role review document/s and made a material decision based on the role review document/s. It’s just a matter of providing the role review document (or documents), isn’t it? Why would there be a practical refusal ground in respect of a request for documents in relation to a single role review process?
You are clearly aware that there have been decisions made in respect of the same document/s, which means the documents would also be close to hand. And if there have been decisions made in respect of the same document/s by the APSC, what's this about needing 78 hours to process the request?
All a bit odd.
Yours sincerely,
Marius
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Our reference: MR23/01386
By email: [FOI #10761 email]
Receipt of your IC review application
Thank you for your application for Information Commissioner Review (IC
review).
The Office of the Australian Information Commissioner (OAIC) is
considering your application.
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 [email address] and quote MR23/01386.
Yours sincerely
Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
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OFFICIAL
Good afternoon Marius,
Please find attached a decision notice in relation to your recent freedom
of information request.
Kind Regards,
FOI OFFICER
Legal Services
Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601
t: 02 6202 3813 w: [1]www.apsc.gov.au
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This email and any attachments may contain confidential or legally
privileged information, and neither are waived or lost if the email has
been sent in error. If you have received this email in error, please
delete it (including any copies) and notify the sender. Please consult
with APSC Legal Services before using disclosing any part of this email or
attachments to a third party.
______________________________________________________________________
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
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Our reference MR23/01386
Agency reference LEX 679
By email: [1][FOI #10761 email]
Dear Marius M,
I write regarding your IC review request of 17 November 2023.
That day you wrote to the OAIC seeking a review of a decision you said was
deemed on 16 November 2023. That same day, the APSC provided you with a
substantive decision (see attached).
The APSC note that as they issued a consultation under 15AB of the FOI Act
on 13 November, which you responded to that day, it had the effect of
extending the statutory processing timeframe by one day.
I’d be grateful if you could please advise whether you wish to request an
IC review of the APSC’s attached decision, and if so the grounds for that
review.
Can you please respond with this information by 6 February 2024.
Regards,
Heath
[2][IMG] 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.
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OAIC reference - MR 23/01386
APSC reference - LEX 679
Dear Heath,
On 16 October 2023 I made an FOI request to the APSC.
The decision in response to my FOI request would have been due on 15 November 2023 in the ordinary course of events.
On 13 November 2023 at 9:15:34 am Melanie McIntyre provided me with a consultation notice: https://www.righttoknow.org.au/request/1....
On 13 November 2023 at 9:13:28 pm I responses to Melanie McIntyre’s consultation notice: https://www.righttoknow.org.au/request/r....
The period starting on the day an applicant is given a notice under subsection (2) and ending on the day the applicant does one of the things mentioned in paragraph (6)(b) or (c) is to be disregarded in working out the 30 day period mentioned in paragraph 15(5)(b): section 24AB(8) of the FOI Act.
Therefore, 13 November 2023, which is the period starting on the day I was given a consultation notice as well as the day ending on the day that I did something mentioned in section 24AB6(c), is to be disregarded in working out the 30 day period mentioned.
Disregarding 13 November 2023 means that the decision was due on 16 November 2023. The APSC failed to provide a decision on 16 November 2023. Therefore a deemed refusal decision took effect at the end of 16 November 2023: section 15AC of the FOI Act.
On 17 November 2023 I applied for IC review of the deemed refusal decision, which is my right under the FOI Act.
A practical refusal decision was not made in accordance with the time frame set out in the FOI Act. The so-called decision was provided after the time frame allowed under the FOI Act. Therefore there is no valid practical refusal decision. The decision under review is the APS Commissioner’s deemed refusal decision.
It’s not necessary for me to address the “substantive” decision because it is not the legal decision. Having said that, the “substantive” decision that Melanie McIntyre provided is preposterous.
The Federal Court has noted that the document that I seek does not exist: https://www.righttoknow.org.au/request/r.... Even though the Federal Court has said that the document does not exist, journalists at The Australian quoted an official in the APSC noting that the document does exist because she based a decision on it: https://archive.org/download/2022-02-10-....
Melanie McIntyre claims that the Federal Court “is the agency most likely to hold the records you are seeking” and for that reason stated that processing my request “would be an unreasonable diversion of the Commission’s resources”. But the Federal Court does not have the document and an official in the APSC has been quoted in The Australian to have a copy of the document that I have sought. So my request was made to the correct agency. More importantly, Melanie McIntyre’s opinion about another agency having the document has no relevance to the issue of a practical refusal ground existing.
Melanie McIntyre also claimed that processing my “request would be a substantial diversion of the Commission’s resources because many of these documents relate to previous FOI requests or related or similar matter”. That can’t be right. I asked the APSC for the role evaluation record, prepared between 1 January 2017 and 31 December 2020, that shows that the SES Band 1 classified National Judicial Registrar & District Registrar role in the Queensland District Registry of the Federal Court was, in the light of the work value of the group of duties described in the work level standards and a proper job analysis, lawfully reclassified and allocated an Executive Level 2 classification for the purposes of rule 9 of the Public Service Classification Rules 2000 (Cth). This document has nothing to do with FOI requests.
On those bases, Melanie McIntyre said that “the amount of time estimated to process your request remains the same as the consultation notice”, which was 78 hours: https://www.righttoknow.org.au/request/1.... That’s just not correct. It will not take 78 hours to make a decision in relation to a role evaluation record for a single role in the Federal Court, which an official in the APSC noted was the basis for a decision she made that was the subject of critical comment by a Federal Court judge: https://archive.org/download/2022-02-10-.... The estimate is clearly preposterous and is based on a flawed premise, which is that processing my “request would be a substantial diversion of the Commission’s resources because many of these documents relate to previous FOI requests or related or similar matter”.
All of what I have said about the “substantive” decision is beside the point because it is not the legal decision. The legal decision is the deemed refusal decision and that is the decision under review if and until a further decision is made according to law.
Yours sincerely,
Marius
Our reference MR23/01386
Agency reference LEX 679
By email: [FOI #10761 email]
Dear Marius M,
Thank you for your below email response.
We will proceed with your IC review in relation to the deemed access refusal decision dated 16 December 2023, and will treat the substantive decision of 17 November 2023 as submissions.
Kind Regards
Lisa Ktenidis (pronouns she/her)
Assistant Director FOI Regulatory Branch to FOI Branch
Office of the Australian Information Commissioner
Sydney| GPO Box 5288 Sydney NSW 2001
P 1300 362 992 E [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.
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Our reference: MR23/01386
Agency reference: LEX 679
Marius M
By email: [1][FOI #10761 email]
Dear Marius M
Thank you for your application for review. We have today informed the
Australian Public Service Commission 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 Australian
Public Service Commission.
Kind regards
[2][IMG] Will Martin (he/him)
Paralegal | FOI Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P 1300 636 992 E [3][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.
[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
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4. https://www.oaic.gov.au/engage-with-us/n...